James Rodriguez V. Harris County, Texas
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Case 4:11-cv-02907 Document 107 Filed in TXSD on 08/01/13 Page 1 of 158 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION JAMES RODRIGUEZ, et al., § § Plaintiffs, § § v. § Civil Action No. 4:11-2907 § HARRIS COUNTY, TEXAS, et al., § § Defendants. § ORDER In this case, Plaintiffs Edward Gonzalez, Orlando Ybarra, Patricia Gonzales, Reynaldo Guerra, Sandra Puente, Thomas Berg, and James Rodriguez (collectively, “Plaintiffs”) challenge the legality of the redistricting plan adopted by the Harris County Commissioner’s Court on August 9, 2011, known as Revised Plan A-1, which reapportions voters among Harris County’s four commissioner precincts (the “County’s Plan”). Plaintiffs claim that the County’s Plan dilutes the voting strength of politically cohesive Latinos in Harris County Commissioner’s Precinct 2 (“Precinct 2”), such that this population has less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice, resulting in a violation of Section 2 of the Voting Rights Act, as amended, 42 U.S.C. § 1973 et seq. Plaintiffs further contend that the County’s Plan violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, because it allegedly was drawn (i) with the motive of intentional discrimination against Hispanics and (ii) with excessive and unjustified use of race and racial data. Defendants Harris County, Texas, and Ed Emmett, in his capacity as Harris County Judge (collectively, “Defendants”), contend that the County’s Plan neither violates the Voting Rights Act nor does it offend the Constitution. This matter was tried without a jury beginning on November 13, 2012. The Court, having heard the arguments, read the submissions of counsel, reviewed the governing legal principles, and considered the testimonial evidence and exhibits, submits the following findings of fact and conclusions of law. 1 Case 4:11-cv-02907 Document 107 Filed in TXSD on 08/01/13 Page 2 of 158 I. LEGAL FRAMEWORK: SECTION 2 OF THE VOTING RIGHTS ACT Section 2 of the Voting Rights Act of 1965 (the “Voting Rights Act”), as amended in 1982, provides that: (a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color . (b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population. 42 U.S.C. § 1973. The Voting Rights Act was enacted to “give those who had been disenfranchised on account of their race the opportunity to participate in the political process.” White v. Alabama, 74 F.3d 1058, 1069 (11th Cir. 1996). Section 2 proscribes practices that, while permitting a mechanical exercise of the right to vote, “operate[] to cancel out or minimize [i.e. dilute] the voting strength of racial groups,” such that members of the racial minority have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. See Thornburg v. Gingles, 478 U.S. 30, 87 (1986) (O’Connor, J., concurring); Rodriguez v. Bexar Cnty., 385 F.3d 853, 859 (5th Cir. 2004); see also White v. Regester, 412 U.S. 755, 765-66 (1973). Ultimately, the right to undiluted voting strength, provided by Section 2, is a guarantee of equal opportunity in voting, ensuring that a minority group is not denied, on account of race, color, or language minority status, the opportunity to exercise an electoral power that is commensurate with its population in the relevant jurisdiction. Johnson v. De Grandy, 512 U.S. 997, 1014 n.11 (1994) (“the ultimate right of Section 2 is equality of opportunity”); Hall v. Virginia, 385 F.3d 421, 429 (4th Cir. 2004); see also Campos v. City of Houston, 113 F.3d 544, 546 (5th Cir. 1997). That said, the goal of 2 Case 4:11-cv-02907 Document 107 Filed in TXSD on 08/01/13 Page 3 of 158 Section 2 is not to guarantee success at the polls for minority-preferred candidates but to provide assurances of fairness in the electoral process. De Grandy, 512 U.S. at 1014. The promise of Section 2 is the removal of all barriers to truly equal participation, but a necessary part of equal participation is the possibility of a loss. United States v. Euclid City Sch. Board, 632 F. Supp. 2d 740, 752 (N.D. Ohio 2009). After all, Section 2 protects the right to meaningful participation, “not the right to vote for the winning candidate.” Nevett v. Sides, 571 F. 2d 209, 236 (5th Cir. 1978). A state or political subdivision thereof violates Section 2 whenever it adopts a practice that dilutes the voting strength of a minority group, such that members of the minority group have less opportunity for meaningful participation and franchise.1 Voinovich v. Quilter, 507 U.S. 146, 157 (1993); Gingles, 478 U.S. at 44. Proof of vote dilution is assembled using the two-part framework set forth in the seminal case of Thornburg v. Gingles, 478 U.S. 30 (1986). Growe v. Emison, 507 U.S. 25, 40-41 (1993) (vote dilution challenge to a single-member districting scheme is analyzed using the framework set forth in Gingles); Fairley v. Hattiesburg, 584 F.3d 660, 667 (5th Cir. 2009). Under Gingles, a plaintiff must first demonstrate that: (1) the affected minority group is sufficiently large and geographically compact to constitute a majority in an additional single-member district; (2) the affected minority group is politically cohesive; and (3) the white majority votes sufficiently as a bloc to enable it—in the absence of special circumstances—usually to defeat the minority group’s preferred candidates. League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 425 (2006); Gingles, 478 U.S. at 50-51; Fairley, 584 F.3d at 667. “[The Fifth Circuit] has interpreted the Gingles factors as a bright line test.” Valdespino v. Alamo Heights Indep. Sch. Dist., 168 F.3d 848, 852 (5th Cir. 1999). Each factor must be proved. Growe, 507 U.S. at 40-41; Fairley, 584 F.3d at 667 (quoting Sensley v. Albritton, 385 F.3d 591, 595 (5th Cir. 2004)). Failure to establish any one of the three Gingles factors precludes a finding of vote dilution, because if these three preconditions are not 1 Vote dilution occurs either by fragmenting large concentrations of minority populations and dispersing them into separate political districts, or by concentrating minorities into districts where they constitute super-majorities. See Gingles, 478 U.S. at 46 n.11 (1986). 3 Case 4:11-cv-02907 Document 107 Filed in TXSD on 08/01/13 Page 4 of 158 present then the plaintiffs cannot show that the challenged electoral practice or device impairs minority voters’ ability to elect representatives of their choice. League of United Latin Am. Citizens No. 4552 v. Roscoe Indep. Sch. Dist., 123 F.3d 843, 847 (5th Cir. 1997); League of United Latin Am. Citizens No. 4434 v. Clements, 986 F.2d 721, 743 (5th Cir. 1993) (“LULAC III”); Benavidez v. Irving Indep. Sch. Dist., 690 F. Supp. 2d 451, 455 (N.D. Tex. 2010). The satisfaction of these three preconditions is necessary but not sufficient to establish a Section 2 claim. De Grandy, 512 U.S. at 1012-13; see also Perry, 548 U.S. at 425-26. If these three preconditions are met, the district court must then examine a variety of other factors to determine whether, under the totality of the circumstances, the challenged practice impairs the ability of the minority voters to participate equally in the political process and to elect a representative of their choice. De Grandy, 512 U.S. at 1011; Fairley, 584 F.3d at 667 (citing Sensley, 385 F.3d at 595); see also Bartlett v. Strickland, 556 U.S. 1, 11-12 (2009). This requires a “searching practical evaluation of the past and present reality.” Gingles, 478 U.S. at 45 (quoting S. Rep. No. 417, 97th Cong., 2d. Sess., (1982) (“Senate Report”) at 30, reprinted in 1982 U.S. Code Cong. & Admin. News (“U.S.C.C.A.N.”) 177 at 208). In conducting this broader inquiry, the court should consider the objective factors set forth in the Senate Report accompanying the 1982 amendments to the Voting Rights Act, including: (1) the history of voting-related discrimination in the State or political subdivision; (2) the extent to which voting in the elections of the State or political subdivision is racially polarized; (3) the extent to which the State or political subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group; (4) the degree to which members of the minority group have been denied access to the candidate slating process; (5) the extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process; (6) the use of overt or subtle racial appeals in political campaigns; (7) the extent to which members of the minority group have been elected to 4 Case 4:11-cv-02907 Document 107 Filed in TXSD on 08/01/13 Page 5 of 158 public office in the jurisdiction; (8) whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group; and (9) whether the policy underlying the state or political subdivision’s use of such voting qualification, prerequisite to voting, or standard, practice, or procedure is tenuous.