Amended Order on Plan C185

Case 5:11-cv-00360-OLG-JES-XR Document 1390 Filed 05/02/17 Page 1 of 193 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. § AMENDED ORDER* 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: This Order addresses Plaintiffs’ claims against the plan for the United States House of Representatives (“congressional plan” or “Plan C185”) enacted by the Texas Legislature in 2011, following a full trial on the claims.1 Plaintiffs mount both statewide claims2 and regional claims, * This Order clarifies the March 10, 2017 Order (docket no. 1339) in the following respects: (1) On page 5, the Court notes that whether Plaintiffs are continuing to be harmed by violations found with regard to CD23 remains undecided; (2) On page 72 footnote 67, the Court clarifies that the Court’s holding that the Task Force Plaintiffs failed to establish a § 2 results claim based on the failure to draw a Latino opportunity district in DFW does not preclude Plaintiffs who have pleaded such a claim from pursuing their § 2 results claims based on the failure to draw an additional Latino opportunity district in DFW in Plan C235; (3) On page 76, the Court clarifies that it does not decide whether post-enactment population projections such as Fairfax’s can or should be used to evaluate Gingles results claims. 1 This Order is designed to be read in conjunction with the Court’s fact findings, which are issued separately. 2 Plaintiffs assert statewide claims under § 2, which the Court considers in terms of whether Plaintiffs have shown that more minority opportunity districts were required than were included in Plan C185 and whether minorities have proportional representation. However, because the analysis necessarily focuses on whether additional districts could have been drawn in specific areas, the Court finds that conducting the analysis in terms of specific geographic areas is 1 Case 5:11-cv-00360-OLG-JES-XR Document 1390 Filed 05/02/17 Page 2 of 193 specifically in the South/West Texas area, Dallas-Fort Worth area, and Houston area, under § 2 of the Voting Rights Act (“VRA”) and the Fourteenth Amendment to the United States Constitution.3 Before turning to the merits, the Court will again explain why the 2011 plan claims are not moot and a determination on the merits of those claims is required. This Court thoroughly explained its reasoning in its September 6, 2013 Order (docket no. 886). Specifically, in rejecting Defendants’ argument that the 2011 plans posed no threat and any order on those plans could provide no effectual relief, the Court reasoned: (1) it was Defendants’ burden to prove mootness; (2) Defendants failed to meet their burden of demonstrating that the conduct alleged to violate § 2 and the Constitution with regard to the 2011 plans could not reasonably be expected to recur; (3) the fact that a challenged law is amended does not alone moot the underlying claim unless the law has been sufficiently altered so as to present a substantially different controversy; (4) the 2013 plans are heavily derived from the 2011 plans, and Plaintiffs contend that many of the alleged violations of the VRA and the Constitution initially enacted in 2011 persist in the 2013 plans, though some perhaps to a lesser degree; (5) although the new plans may disadvantage Plaintiffs to a lesser degree, they disadvantage them in the same fundamental way such that Plaintiffs are still suffering injury from the 2011 plans, even if they are technically repealed; (6) there is no indication that the Legislature would not engage in the same conduct that Plaintiffs assert violated their rights in upcoming redistricting cycles; (7) necessary. 3 Plaintiffs’ Fifteenth Amendment and partisan gerrymandering claims were disposed of prior to trial. Docket no. 275, 285. This Court granted summary judgment on the Fifteenth Amendment claims, holding that the law does not recognize a claim under the Fifteenth Amendment for vote dilution. Docket no. 275 at 17. On the political gerrymandering claims, the Court found that the claims were justiciable, but because Plaintiffs had not identified a reliable standard by which to measure the redistricting plan’s alleged burden on their representational rights, the Court was required to grant judgment on the pleadings pursuant to Supreme Court precedent. Docket no. 285 at 19-22. But see Whitford v. Gill, 15-cv-421-bbc, 2016 WL 6837229 (W.D. Wis. Nov. 21, 2016) (finding for plaintiffs on political gerrymandering claim). 2 Case 5:11-cv-00360-OLG-JES-XR Document 1390 Filed 05/02/17 Page 3 of 193 because Texas refused to concede the illegality of any conduct, a dispute remains over the legality of the challenged practices and there is no assurance that the conduct will not recur, and Plaintiffs maintain a personal stake in the controversy; and (8) there remains the possibility of declaratory and equitable relief under § 3(c) for some claims. All three members of this Court agreed with this reasoning. However, after the Fifth Circuit issued its decision in Davis v. Abbott, 781 F.3d 207 (5th Cir. 2015), in which the Court stated that the 2011 Senate Plan lawsuit had become moot, Defendants again argued that the 2011 House and congressional plan claims were moot. Docket no. 1310. Defendants argued that the Fifth Circuit’s mootness conclusion was necessary to its decision that Texas waived its opportunity to seek vacatur of this Court’s interim-relief orders in light of Shelby County v. Holder, and that the Fifth Circuit’s holding “bears directly on this Court’s jurisdiction over claims against the Texas Legislature’s 2011 House and congressional redistricting plans.” Docket no. 1310 at 23-24. “At the very least,” Defendants argued, “Davis implies that the Plaintiffs’ claims are moot if they challenge districts that were, like Senate District 10, modified by the Court and later adopted in modified form by the Legislature.” Id. at 25. However, Davis v. Abbott does not change the Court’s conclusion that most of the 2011 plan claims are not moot. Davis v. Abbott was not a decision about mootness; it concerned whether the plaintiffs in the 2011 Senate Plan case were prevailing parties entitled to fees and costs. It did not announce a new rule of law or change the legal landscape concerning mootness. Thus, the only basis upon which it could change this Court’s prior conclusions and bind this Court on mootness is if it is factually indistinguishable from this case. But it is not. As a preliminary matter, the Court notes that the case against the 2011 Senate Plan was not 3 Case 5:11-cv-00360-OLG-JES-XR Document 1390 Filed 05/02/17 Page 4 of 193 consolidated with the House and congressional plans, and it remained a separate case (5:11-CV- 00788). It also involved a very limited set of claims, unlike the House and congressional plan cases. At the interim remedy stage, the proposed compromise plan4 approved by this Court under the applicable standard set forth in Perez v. Perry resolved all of the plaintiffs’ claims. See docket no. 190 (final judgment noting that Plan S172 “restored [Senate] district 10 to near benchmark configuration and remedied the constitutional infirmities being asserted”). Plaintiffs agreed that the interim Plan S172 did not violate the VRA or the Constitution. Thus, when the Legislature adopted that plan in 2013, no plaintiff was complaining that infirmities remained in the plan or alleged that they were still suffering injury from the repealed 2011 plan, and no plaintiff sought to amend their pleadings to pursue § 3(c) relief. When the Fifth Circuit decided that the 2011 plan claims were moot, it was therefore operating under substantially different facts, and it was not addressing the House or congressional plan claims when it referred to “the lawsuit” becoming moot. In this case, in contrast, numerous alleged infirmities from the 2011 plans remained in the interim plans that Plaintiffs contended were continuing to injure them. Unlike in the Senate plan, many asserted VRA and constitutional infirmities were not remedied in the interim plans, and thus the injuries were alleged to persist in the 2013 plans. Thus, there was not only a possibility that Defendants would continue to engage in conduct that Plaintiffs claimed violated the VRA or the Constitution, Defendants were continuing to engage in exactly such conduct when they adopted the interim plans in 2013. The fact that this Court finds that mapdrawers acted with an impermissible intent to dilute minority voting strength or otherwise violated the Fourteenth Amendment and that 4 The plan was submitted by the plaintiffs, and the defendants indicated in open court that they had no objection to entry of an order directing that Plan S172 be used on an interim basis. Docket no. 147 at 2. 4 Case 5:11-cv-00360-OLG-JES-XR Document 1390 Filed 05/02/17 Page 5 of 193 Plaintiffs are still being harmed by the lines drawn as the direct product of these violations demonstrates that many of Plaintiffs’ claims against the 2011 plans are not moot. Specifically, Plaintiffs contend that they continue to be harmed by violations of the VRA and Fourteenth Amendment in CD23, CD27, and CD35. The configurations of CD35 and CD27 remain unchanged in Plan C235, and whether the harms found regarding CD23 continue in Plan C235 remains to be decided. While Defendants undoubtedly would prefer that we address those infirmities only in the context of the 2013 legislative session and the plans adopted therein, doing so would potentially deprive Plaintiffs of a remedy tied to that 2011 injury—the § 3(c) remedy.

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