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State of Texas v. United States of America

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


December 22, 2011

STATE OF TEXAS, PLAINTIFF,
v.
UNITED STATES OF AMERICA, AND ERIC H. HOLDER, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES DEFENDANTS, AND WENDY DAVIS, ET. AL., INTERVENOR-DEFENDANTS.

The opinion of the court was delivered by: Collyer, District Judge:

MEMORANDUM OPINION

Before: GRIFFITH, Circuit Judge, COLLYER & HOWELL, District Judges.

In the summer of 2011, the Texas legislature redrew the boundaries for voting districts in the State to account for the report of the 2010 Census that its population had grown in the last decade by more than four million people, about two-thirds of whom are Hispanic. As required by Section 5 of the Voting Rights Act, Texas has asked this Court for a declaratory judgment that its redistricting plans have neither the purpose nor the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group. The United States contends that the proposed congressional and State House districts adversely affect the voting rights of Hispanics. Various Intervenors assert the same claim as the United States, but some of them target the plans for the State Senate as well.

On November 8, 2011, this Court denied summary judgment to Texas because: 1) Texas used an improper standard and/or methodology to determine which districts afford minority voters the ability to elect their candidates of choice; and 2) material facts remain in dispute regarding whether the plans in fact comply with Section 5 of the Voting Rights Act. Order [Dkt # 106]. This Opinion provides our analysis.

I. FACTS

A. Procedural Background

On July 19, 2011, Texas filed the instant complaint for declaratory judgment that redistricting plans*fn1 it adopted to govern elections for the U.S. House of Representatives ("Congressional Plan"), the State House of Representatives ("State House Plan"), the State Senate ("State Senate Plan") (collectively the "Plans"), and the State Board of Education complied with Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c. The United States and several of the Intervenors*fn2 (collectively with the United States, the "Defendants") filed answers challenging the Congressional Plan, the State House Plan, and the State Senate Plan. No one challenges the redistricting plans for the State Board of Education.*fn3 Texas moved for summary judgment on September 14, 2011. The parties engaged in swift discovery, filed briefs and exhibits, and presented oral argument to this Court on November 2, 2011.

A three-judge court in the Western District of Texas is currently hearing constitutional challenges and challenges under Section 2 of the Voting Rights Act to these same redistricting Plans. Mindful of the fact that our refusal to grant preclearance would require that court to draw interim plans because of election-related deadlines in Texas, this Court issued an order denying summary judgment on all three Plans on November 8, 2011. See Dkt. # 106; see also Perez v. Texas, No. 5:11-360, Am. Order [Dkt. # 391] (W. D. Tex. Oct. 4, 2011) (consolidated action); Davis v. Perry, No. 5:11-788, Am. Order [Dkt. # 15] (W. D. Tex. Oct. 4, 2011). The Court now issues its Memorandum Opinion explaining its reasoning.

B. Statutory Background

The Voting Rights Act of 1965 ("VRA"), Pub. L. No. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. § 1973 et seq.), was enacted to counteract attempts by states and local jurisdictions to evade the Reconstruction Amendments' prohibitions on racial discrimination in voting.*fn4 Litigation and court orders had been slow and often ineffective in curbing the egregious abuses that jurisdictions had used to impede minority voters in the exercise of their constitutionally protected rights. South Carolina v. Katzenbach, 383 U.S. 301, 313-14 (1966). The VRA contains a set of "sterner and more elaborate measures" that Congress found necessary to fight the "insidious and pervasive evil which had been perpetrated in certain parts of our country through unremitting and ingenious defiance of the Constitution." Id. at 309.

The VRA contains a complex remedial scheme "aimed at areas where voting discrimination has been most flagrant." Id. at 315. These targeted, temporary remedial measures apply to a state or local political body that is a "covered" jurisdiction as defined by Section 4(b) of the VRA, i.e., one that has been found, according to a statutory formula, to have engaged in voting discrimination. See 42 U.S.C. § 1973b(b); Riley v. Kennedy, 553 U.S. 406, 413 (2008). Section 5 is one of those temporary remedial measures. It was enacted as "a response to a common practice in some jurisdictions of staying one step ahead of the federal courts by passing new discriminatory voting laws as the old ones had been struck down." Beer v. United States, 425 U.S. 130, 140 (1976) (quoting H.R. REP. No. 94-196, at 57-58 (1970)).

Section 5 requires covered jurisdictions to obtain preclearance for any changes to voting qualifications, requirements, standards, practices, or procedures either administratively from the Attorney General or from the District Court for the District of Columbia. Section 5 places the burden of proof on the covered jurisdiction to show that the planned change "neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color, or [membership in a language minority group]." 42 U.S.C. § 1973c(a). Subsection 1973c(b) of the statute further provides that:

Any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting that has the purpose of or will have the effect of diminishing the ability of any citizens of the United States on account of race or color, or [membership in a language minority group], to elect their preferred candidates of choice denies or abridges the right to vote . . . .

Id. § 1973c(b). The goal of subsection 1973c(b) "is to protect the ability of such citizens to elect their preferred candidates of choice." Id. § 1973c(d). In addition, the statute further explains that "[t]he term 'purpose'. . . shall include any discriminatory purpose." Id. § 1973c(c). No change to a voting practice or procedure, including an electoral redistricting plan, see Miller v. Johnson, 515 U.S. 900, 905-06 (1995), may be implemented until preclearance is granted. Reno v. Bossier Parish School Bd. (Bossier I), 520 U.S. 471, 477-78 (1997).

Section 5 originally was intended to be in effect for only five years, but Congress has re-authorized it four times, most recently in 2006 for twenty-five years.*fn5 Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2510 (2009). During the 2006 reauthorization, Congress amended the statute to clarify what it meant by "effect" and "purpose" under Section 5, Shelby Cnty. v. Holder, No. 10-cv-651, 2011 WL 4375001, at *10-11 (D.D.C. Sept. 21, 2011), and added language to emphasize that a Section 5 inquiry must focus on whether a proposed change will "diminish[]" the ability of minority voters "to elect their preferred candidates of choice." 42 U.S.C. § 1973c(b), (d); H.R. REP. NO. 109-478, at 46 (2006) ("Thus, in amending Section 5 to add a new subsection (b), the Committee makes clear that in making preclearance determinations under Section 5, the comparative 'ability [of the minority community] to elect preferred candidates of choice' is the relevant factor to be evaluated . . . ." (alterations in original)).*fn6 Speaking broadly, Congress proscribed "any" change that would have such an "effect" because such a change "denies or abridges the right to vote." 42 U.S.C. § 1973c(b). Thus, a covered jurisdiction will not meet the requirements of Section 5 when a proposed change to a voting procedure or plan would have a retrogressive effect on the "ability" of minority voters to elect candidates of their choice. Id.

The 2006 Amendments also proscribe "any" change that "has the purpose of" diminishing the ability of minority voters to elect candidates of their choice. Congress sought to ensure that "purpose" was no longer limited to a "retrogressive purpose," as the Supreme Court had held in Reno v. Bossier (Bossier II), 528 U.S. 320 (2000), see 42 U.S.C. § 1973c(b)-(c); H.R. REP. NO. 109-478, at 46, but covered more broadly "any discriminatory purpose." 42 U.S.C. § 1973c(c) (emphasis added).

Defendants challenge both the effect of and the purpose behind Texas' redistricting Plans. In particular, this lawsuit focuses on the Plans' effect on Hispanic and Black voters in Texas and whether these Plans were enacted with a discriminatory purpose aimed at such voters. For the purposes of the VRA, Hispanic citizens are treated as members of a language minority group. See 42 U.S.C. § 1973l(c)(3) ("'[L]anguage minority group' means persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage.").

1. "Effects" Analysis

The Section 5 evaluation of whether a new procedure has "the effect of denying or abridging the right to vote" is not a question of constitutional law but of statutory construction, and is dependent on congressional intent. Beer, 425 U.S. at 139-40. By enacting Section 5, Congress aimed to guarantee that minorities' new gains in political participation would not be undone. Id. at 140-41. Thus, the Supreme Court has found that the "purpose of [Section] 5 has always been to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." Id. at 141 (emphasis added); see 42 U.S.C. § 1973c(d) ("The purpose of [§ 1973(b)] is to protect the ability of such [minority] citizens to elect their preferred candidates of choice.").

Determining whether a new voting plan diminishes the ability to elect and thus has a retrogressive effect on minority voting rights necessarily requires a comparison between the voting plan in place and the proposed plan. Bossier I, 520 U.S. at 478. A covered jurisdiction's existing plan serves as the "benchmark" against which the "'effect' of voting changes is measured." Id. The Supreme Court has instructed that Section 5 is not ameliorative and the focus of its retrogression analysis is on "freezing election procedures in the covered areas unless the changes can be shown to be nondiscriminatory." Beer, 425 U.S. at 140 (quoting H.R. REP. NO. 94-196, at 57-58) (internal quotation marks omitted). If a plan does not increase the degree of discrimination against a minority voting population, it is entitled to preclearance. City of Lockhart v. United States, 460 U.S. 125, 134-35 (1987). For example, plans that preserve or actually increase minority voting strength should be precleared unless they have a discriminatory purpose. See Georgia v. Ashcroft, 539 U.S. 461, 477 (2003) (quoting Lockhart, 460 U.S. at 134 n.10; Bush v. Vera, 517 U.S. 952, 983 (1996)); Beer, 425 U.S. at 141 (holding that an "ameliorative new legislative apportionment cannot violate [Section] 5 unless . . . [it] so discriminates on the basis of race or color as to violate the Constitution").

Beer described Section 5 as requiring covered jurisdictions to protect minority groups' "effective exercise of the electoral franchise," which meant the "ability of minority groups to participate in the political process and to elect their candidate of choice." 425 U.S. at 141 (emphasis added). Although the Supreme Court used this phrase in subsequent decisions, it was not until Georgia v. Ashcroft that the Court provided further explanation of its reasoning. Georgia v. Ashcroft placed greater emphasis on minority participation in electoral politics, holding that a "court should not focus solely on the comparative ability of a minority group to elect a candidate of its choice" but should look to the "totality of the circumstances" regarding voter participation, including "the extent of the minority group's opportunity to participate in the political process." 539 U.S. at 479-80 (emphasis added). Using this analysis, the Court stated that Section 5 accommodates choices by covered jurisdictions among systems of representation when redistricting, i.e., a jurisdiction may create "safe" majority-minority districts that may "virtually guarantee the election of a minority group's preferred candidate"; it may create districts where a coalition of voters "will help to achieve the electoral aspirations of the minority group"; or it may add "influence districts," where minorities play a "substantial, if not decisive, role in the electoral process." Id. at 480-83. The Supreme Court concluded that the lower court's retrogression analysis had focused too much on decreases in the Black population in majority-minority districts and had not properly credited increases in coalition and influence districts under Georgia's proposed redistricting plan, which could offset potential losses in majority-minority districts. Id. at 486-87.

Congress disagreed with this analysis and amended Section 5 in response to Georgia v. Ashcroft during the VRA's 2006 reauthorization. See H.R. REP. NO. 109-478, at 45; S. REP. NO. 109-295, at 18 (2006); see also LaRoque v. Holder, 650 F.3d 777, 794 (D.C. Cir. 2011); Shelby Cnty., 2011 WL 4375001, at *11. The 2006 Amendments clarified that Congress intended a Section 5 inquiry to focus on whether a proposed voting change will diminish the "ability [of minority citizens] to elect preferred candidates of choice." H.R. REP. NO. 109-478, at 46 (emphasis added). Thus, Congress specified that any change that has the effect of diminishing citizens' ability to elect acandidate of their choice on account of race, color, or membership in a language minority group "denies or abridges the right to vote" within the meaning of Section 5. 42 U.S.C. § 1973c(b); H.R. REP. NO. 109-478, at 46.

By these Amendments, Congress sought to make clear that it was not enough that a redistricting plan gave minority voters "influence"; a plan cannot diminish their ability to elect candidates. The House Report opined that leaving the Georgia v. Ashcroft standard in place would encourage states to disperse minority voters into different voting districts under an "influence" label and that gains made by minority voters in districts where they were represented by the candidate of their choice would be jeopardized. H.R. REP. NO. 109-478, at 45.

2. "Purpose" Analysis

Section 5 also prohibits covered jurisdictions from implementing a plan that is enacted with the "purpose" of "denying or abridging the right to vote on account of race, color, or [membership in a language minority]." 42 U.S.C. § 1973c. In Bossier II, the Supreme Court held that a plan animated by a discriminatory purpose could nonetheless merit preclearance if its purpose was something other than to diminish a minority group's ability to elect their preferred candidates. The government conceded that the plan proffered by the covered jurisdiction did not have a retrogressive effect on the voting ability of the minority population. 528 U.S. at 324. The government argued that the Court should nonetheless deny preclearance because facts demonstrated that the plan was enacted with discriminatory intent. Id. at 328. In a 5-4 decision, the Supreme Court concluded that "the 'purpose' prong of § 5 covers only retrogressive dilution." Id. In other words, Section 5 only prohibited plans that were enacted with the purpose toreduce minorities' ability to elect - whether or not retrogression actually occurred. Section 5 did not, however, "prohibit preclearance of a redistricting plan enacted with a discriminatory but non-retrogressive purpose." Id. at 341.

In the 2006 Amendments, Congress clarified that the "purpose" requirement of Section 5 prohibits not only voting plans enacted with a retrogressive purpose, but also plans devised with "any discriminatory purpose." 42 U.S.C. § 1973c(c). The House Report characterized Bossier II as a severe limitation on the reach of the "purpose" prong, through which "Congress [had] sought to prevent covered jurisdictions from enacting and enforcing voting changes made with a clear racial animus, regardless of the measurable impact of such discriminatory changes." H.R. REP. NO. 109-478, at 42. According to the House Report, Congress intended to restore the pre-Bossier II discriminatory purpose standard:

Voting changes that "purposefully" keep minority groups "in their place" have no role in our electoral process and are precisely the types of changes Section 5 is intended to bar. To allow otherwise would be contrary to the protections afforded by the 14th and 15th

[A]mendment[s] and the VRA. Thus, by clarifying that any voting change motivated by any discriminatory purpose is prohibited under Section 5, the Committee seeks to ensure that the "purpose" prong remains a vital element to ensuring that Section 5 remains effective.

Id. at 43. To that end, Congress endorsed the framework in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), to determine "whether voting changes submitted for preclearance were motivated by a discriminatory purpose." Id. Prior to Bossier II, courts had relied upon the factors set forth in Arlington Heights to assess whether a covered jurisdiction's proposed change to its voting procedures was based upon a discriminatory purpose. See Arizona v. Reno, 887 F. Supp. 318, 322 (D.D.C. 1995); Busbee v. Smith, 549 F. Supp. 494, 516-17 (D.D.C. 1982), aff'd, 459 U.S. 1166 (1983). Indeed, Bossier I instructed lower courts conducting a Section 5 analysis to "look to . . . Arlington Heights for guidance," where the Court had "set forth a framework for analyzing 'whether invidious discriminatory purpose was a motivating factor' in a government body's decisionmaking." 520 U.S. at 488 (quoting Arlington Heights, 429 U.S. at 266). The legislative history to the 2006 Amendments and reauthorization of the VRA demonstrate congressional agreement with that approach.

Arlington Heights was not a Voting Rights Act case. It involved the refusal of the Village of Arlington Heights, Illinois, to re-zone a tract of land for low-income housing, which was challenged as a violation of the Equal Protection Clause of the Fourteenth Amendment. In reaching its decision in favor of the Village, the Supreme Court identified multiple factors to assess whether the Village's purpose was discriminatory. 429 U.S. at 267-68. The Court cautioned that "[d]etermining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Id. at 266; see also Hunt v. Cromartie, 526 U.S. 541, 546 (1999) (describing such an inquiry as "an inherently complex endeavor").

"[A]n important starting point," the Court directed, is to consider whether the challenged action "bears more heavily on one race than another." Arlington Heights, 429 U.S. at 266 (quoting Washington v. Davis, 426 U.S. 229, 242 (1976)) (internal quotation marks omitted). In "easy" cases, "a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face." Id. (citations omitted). That said, absent a pattern of discrimination which is "stark," an action's "impact alone is not determinative, and the Court must look to other evidence." Id. (footnote omitted). Courts should consider "[t]he historical background of the decision . . . particularly if it reveals a series of official actions taken for invidious purposes"; "[t]he specific sequence of events leading up [to] the challenged decision [which] also may shed some light on the decisionmaker's purposes"; and "[t]he legislative or administrative history," which can be "highly relevant . . . where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports." Id. at 267-68.

C. Parties' Arguments Regarding the Legal Standard to Measure

Retrogressive Effect

Texas and the Defendants contest the standard for measuring whether a proposed redistricting plan would have a retrogressive effect on minority voters' ability to elect their candidates of choice. Texas relies on voting population demographics alone. In both its benchmark and proposed plans, Texas counted as ability districts, which it calls "opportunity districts," *fn7 those districts in which Blacks make up forty percent of the voting-age population and Hispanics make up fifty percent of the citizen voting-age population. Texas omitted consideration of all other factors. The United States, joined by all Intervenors, argues for a multi-factored "functional" analysis, which starts with an examination of voting-age population but also analyzes additional factors. See Guidance Concerning Redistricting Under Section 5 of the Voting Rights Act, 76 Fed. Reg. 7470 (Feb. 9, 2011).

Texas contends that the 2006 Amendments to Section 5 provide that covered jurisdictions need only maintain those districts where minority voters can control the election and posits that majority-minority districts are best suited to accomplish this goal. Texas relied on voting-age population statistics to ensure that its proposed redistricting Plans were not retrogressive. Texas explains that each of its Plans maintains at least the same number of districts as in the benchmark plans in which a specified minority constitutes a percentage of eligible voters sufficient to determine the outcome of elections. Texas sets this percentage at more than fifty percent of the citizen voting-age population for Hispanics ("HCVAP") and forty percent of the voting-age population for Blacks ("BVAP") in the State. Texas "defines 'ability to elect' districts based upon . . . demographic data indicating [that] a [single] cohesive racial or ethnic group has the ability to elect candidates of their choice - whether or not the candidate receives support from other voters in the district." Pl.'s Reply [Dkt. # 92] at 27. Thus, Texas' arguments that its Plans have no retrogressive effect are solely based upon data measuring minority voting-age population.

Defendants challenge this logic and its results. All Defendants ask this Court to conclude, consistent with the guidance issued by the DOJ in 2011 ("2011 DOJ Guidance"), that there is no single measure that determines minorities' ability to elect:

In determining whether the ability to elect exists in the benchmark plan and whether it continues in the proposed plan, the Attorney General does not rely on any predetermined or fixed demographic percentages at any point in the assessment." See [2011 DOJ Guidance]. Determining whether the ability to elect exists "requires a functional analysis of the electoral behavior within the particular jurisdiction or election district." Id. Besides population, this includes an examination of election history and voting patterns within the jurisdiction, voter registration and turnout information.*fn8

U.S. Mem. [Dkt. # 79] at 6; see Intervenors' Joint Mem. [Dkt # 74] at 7.

Although the United States relies on the multi-factored 2011 DOJ Guidance, the test it offered to measure retrogression, while more comprehensive than Texas' approach, still relied upon a limited set of data. Using data compiled by the State, the United States' expert, Dr. Lisa Handley, performed a functional election analysis in which she assessed data on statewide elections and elections within specific voting districts in order to identify which districts afford minority voters the ability to elect. She then recompiled data on certain statewide elections based upon the proposed new boundaries of voting districts and determined how often minority-preferred candidates would succeed in the redrawn districts. The United States used this data to assert that minority groups' ability to elect would be lost in certain proposed congressional and State House districts.

The Intervenors also take issue with Texas' view that all districts where Hispanic voters constitute a majority of the citizen voting-age population or Black voters constitute forty percent of the voting-age population are ipso facto "ability to elect" districts. They advocate for a multi-factored approach that accounts for:  the size of a district's minority population considering citizenship rates;  voting-age population and voter registration;  the extent of racially polarized voting;  the presence of electoral coalitions involving minority voters;  the role of incumbency in past elections;  factors that affect turnout rates by race; and  recent electoral trends.

Intevenors' Joint Mem. at 6-7.

All Defendants contend that Section 5 protections are not limited to districts where a single minority group has the ability to elect its candidate of choice, but extend to districts where one group of minority voters joins together with voters of a different racial or language background to elect the minority voters' candidate of choice. The United States points to language in the House Report accompanying the 2006 Amendments explaining that Section 5 protects minorities' ability to elect candidates of choice either "directly or coalesced with other voters." U.S. Mem. at 14 (quoting H.R. REP. NO. 109-478, at 46). Defendants urge this Court to conclude that the proposed Plans are retrogressive because they do not account for the loss of coalition districts, while Texas contends that such districts are not protected under the VRA.

Defendants also argue that where, as in Texas, a proposed plan contains an increased number of voting districts, the percentage of minority ability districts in the proposed plan should be measured against the percentage of minority ability districts in the benchmark plan. Defendants ask this Court to find that the Congressional Plan is retrogressive because it increases the number of electoral districts (in significant part because of the increase in the Hispanic population in Texas), but allegedly does not increase the number of ability districts for Hispanic voters.

Finally, the Intervenors, most specifically the Texas Legislative Black Caucus ("TLBC"), the League of United Latin American Citizens ("LULAC"), and the Texas State Conference of NAACP Branches, assert that Section 5 not only protects against the diminishment of an existing ability to elect, but also the diminishment of an emerging ability to elect. These Intervenors contend that Section 5's retrogression standard must include an assessment of whether redistricting forestalls emerging minority electoral opportunities in benchmark districts. They argue that, because a retrogression analysis under Section 5 in some measure looks to the future effect of changes in voting practices, it must protect against the reduction of predictable future gains in minority voting strength.

D. Parties' Arguments Regarding the Contested Plans

Applying their own respective retrogression analyses, the parties dispute the alleged retrogressive effect that Texas' proposed restricting Plans will have on minority voters' ability to elect their candidates of choice. The parties' comparison of the benchmark plans, i.e., the most recent electoral plans in effect for the U.S. House of Representatives, Texas State Senate, and Texas House of Representatives,*fn9 with Texas' proposed redistricting Plans leads them to dispute which districts should be counted as minority ability districts in both the benchmark and proposed Plans.*fn10

1. The Congressional Plan

In its analysis of the benchmark congressional districts, Texas identified, out of a total of thirty-two districts, seven Hispanic ability districts, each of which allegedly has an HCVAP of more than fifty percent.*fn11 Texas concedes that under the proposed Congressional Plan, Congressional District ("CD") 27 would no longer be an ability district for Hispanics. Texas counters that this loss is more than offset by two new Hispanic ability districts: approximately 71.7 percent of the citizen voting age population of CD 34 will be Hispanic; 51.9 percent of CD 35 will be as well. As a result, Texas asserts that its proposed Congressional Plan will add one Hispanic ability district, increasing the number of Hispanic ability districts from seven to eight. The proposed Congressional Plan will thus, according to Texas, ameliorate rather than retrogress Hispanic voting power in the State.

Texas also asserts that Black voting power in the State will be enhanced under the Congressional Plan. Currently, only CD 18 has a BVAP of more than forty percent. With the new plan, CD 30 will also.*fn12

The United States agrees that the proposed Congressional Plan does not retrogress Black voting power, and appears to credit Texas with three (not just two) Black ability congressional districts in the Congressional Plan. According to the United States, CDs 9, 18, and 30 are, and will remain, Black ability districts in both the benchmark and the proposed plan. The United States argues, however, that Hispanic voting power will retrogress under the proposed Congressional Plan because: 1) Texas' Congressional Plan does not create any new Hispanic ability districts, despite a significant increase in the Hispanic population and four new congressional districts in the State; and 2) CD 23, which Texas counts as a Hispanic ability district under the benchmark, would not be an ability district in the proposed plan.

Both the United States and Texas agree that the proposed Congressional Plan would include at least seven Hispanic ability districts (CDs 15, 16, 20, 28, 29, 34, and 35) and that CD 27, which was a Hispanic ability district under the benchmark, would lose this status. The parties dispute the status of CD 23 under the proposed plan. Although both agree that CD 23 is a Hispanic ability district under the benchmark, they disagree as to its status under the proposed plan. Texas asserts that CD 23 will continue to be a Hispanic ability district in the proposed plan because it will have an HCVAP of 58.5 percent. The United States argues that CD 23's new boundaries, which will allegedly include Hispanics with lower voter turnout, will actually decrease Hispanic voter participation and diminish their ability to elect. However, the United States agrees that the alleged addition of CDs 34 and 35 as Hispanic ability districts in the proposed Congressional Plan would provide Texas with seven total Hispanic ability districts under the proposed plan.

The Gonzales Intervenors argue that CD 25 should be counted in the benchmark as a minority ability district and that the proposed Congressional Plan has a retrogressive effect on this district. They argue, with no opposition from Texas, that Hispanic, Black, and fifty percent of White voters in CD 25 have voted cohesively in support of minority preferred candidates. But CD 25 will lose large numbers of minority voters in the proposed plan, and these voters will be replaced by an influx of White voters whose voting behavior differs substantially from the Whites who voted with minorities in the benchmark.

Finally, the United States and several Intervenors assert that the proposed Congressional Plan is retrogressive because it fails to recognize adequately the significance of the Hispanic contribution to Texas' population growth in the last decade. According to the 2010 Census, the population of the State has grown by over four million people since 2000, of which approximately two-thirds are Hispanics. This population surge has resulted in a gain of four seats in the U.S. House of Representatives, increasing the number of Texas delegates from thirty-two to thirty-six, an increase unprecedented for a state fully covered by Section 5. U.S. Mem. at 22 n.9. Despite the historic increase in the number of congressional seats, these Defendants argue that Texas drafted a redistricting plan that creates no new Hispanic ability districts. They argue that this is sufficient evidence that the proposed Congressional Plan is retrogressive, because maintaining at seven the number of Hispanic ability districts in the face of this surge in Hispanic population would reduce the proportion of Hispanic ability districts in Texas' congressional delegation.*fn13 Texas responds that a redistricting plan that preserves the pre-existing number of minority ability districts will always satisfy Section 5's retrogression standard.

2. The Texas House of Representatives Plan

In the benchmark plan for the Texas House of Representatives, Texas identifies thirty districts out of a total of 150 that have an HCVAP of more than fifty percent, which, by Texas' measure, afford Hispanic citizens the ability to elect their candidates of choice.*fn14

According to Texas, the proposed State House Plan will also have thirty districts that have an HCVAP of more than fifty percent, allegedly maintaining the same number of Hispanic ability districts as in the benchmark. Texas concedes that State House District ("HD") 33, which is currently a Hispanic ability district under the benchmark plan, will no longer be such a district in the proposed State House Plan. Texas claims, however, that "new" HD 148 will offset that loss. With regard to the Black minority population, Texas identifies eleven districts in the benchmark plan that have a BVAP of more than forty percent, and twelve districts with the same BVAP of more than forty percent in the proposed State House Plan. The proposed plan adds HD 27 as a new Black ability district. Based on these population statistics, Texas contends that its proposed State House Plan will not have a retrogressive effect on the ability of Hispanic or Black voters to elect their candidates of choice to the Texas House of Representatives.

The United States and several Intervenors, however, disagree. Notably, the United States does not believe the proposed State House Plan would retrogress Black voting power.*fn15 However, according to the United States and several Intervenors, the State House Plan would retrogress Hispanic voting power. Based on its retrogression analysis, the United States identifies thirty-four Hispanic ability districts under the benchmark plan, of which three or four will allegedly be lost in the proposed State House Plan.*fn16

Additionally, Dr. Handley opines that of four "coalition districts" in the benchmark, where minorities have been able to elect their candidates of choice by uniting with other minority groups, two - HD 149 and HD 27 - will be lost. In HD 149, a coalition of Hispanic, Black, and Asian voters has repeatedly elected its candidate of choice since 2004, but that ability would be lost under the proposed State House Plan. Although Dr. Handley also identified HD 27 as a coalition district in the benchmark, she noted that it would change to a Black ability district under the proposed plan. Due to alleged fracturing in these districts, the United States anticipates a loss of four to five minority ability districts, i.e., HDs 33, 35, 41, 117, and 149, in the State House Plan.

As noted, most Intervenors agree with the United States. In addition, Intervenors TLBC, LULAC, and the Texas State Conference of NAACP Branches argue that, under the State House Plan, minority voting power would be diminished in HDs 26, 101, 106, and 144, each of which was on the verge of becoming a minority ability district under the benchmark.

3. The Texas State Senate Plan

Out of a total of thirty-one State Senate districts, Texas identifies seven Hispanic ability districts under the benchmark plan in which there is an HCVAP of greater than fifty percent,*fn17 and claims the same number based on the same districts in the proposed State Senate Plan. Additionally, Texas identifies two Black ability districts with a BVAP of more than forty percent under the benchmark plan, each of which remains such in the proposed State Senate Plan.*fn18 The United States has similarly concluded that the proposed State Senate Plan is not retrogressive.

However, the Davis Intervenors allege that the State Senate Plan is retrogressive because it fractures Black and Hispanic communities that have formed a working coalition to elect their candidate of choice in Senate District ("SD") 10.*fn19 This is not a district deemed by Texas or the United States to be a minority ability district in the benchmark plan. However, the Intervenors claim both that it was an ability district in the benchmark and that, due to alleged fracturing of SD 10's minority communities in the proposed State Senate Plan, minority voters in this district will no longer be able to elect their candidate of choice. Texas "refutes any argument that [SD] 10 was 'dismantled'" and further states that SD 10 "in both the benchmark plan and [the proposed plan] is a crossover district, and not even a particularly strong one. Such districts are not protected under the VRA." Texas Reply to Senate [Dkt. # 90] at 5.

Another group of Intervenors - TLBC, LULAC, and the Texas State Conference of NAACP Branches - argues that the proposed State Senate Plan will retrogress minority voters' ability to elect in SD 15. These Intervenors allege that the combined Black and Hispanic percentage of total population in proposed SD 15 decreases from 72.3 percent to 66.7 percent and that such a decrease will be electorally significant. Texas argues in response that "[SD] 15 was not a protected district under the benchmark because it was not a majority-minority district."*fn20 Texas Reply to Senate at 4. According to Texas, "In both the benchmark and [the proposed plan], [SD] 15 is a coalition district" and "such districts are not protected." Id.

II. STANDARD FOR SUMMARY JUDGMENT

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011). Moreover, summary judgment is properly granted against a party who "after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255; Talavera, 638 F.3d at 308. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Anderson, 477 U.S. at 252. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).

III. ANALYSIS

A. Summary Judgment is Inappropriate Because Texas Used an Incorrect

Standard to Measure Retrogression

Texas urges this Court to rely solely on voter demographic data to identify majority-minority districts and to count only such districts as minority ability districts. This Court cannot oblige. We find that a simple voting-age population analysis cannot accurately measure minorities' ability to elect and, therefore, that Texas misjudged which districts offer its minority citizens the ability to elect their preferred candidates in both its benchmark and proposed Plans. Since Texas used the wrong standard, there are material facts in dispute about which districts are minority ability districts in the benchmark and proposed Plans. On this record, we cannot determine whether the Plans will have a retrogressive effect on Texas' minority citizens' ability to elect.

Beginning with Beer, the Supreme Court has addressed the relationship between majority-minority districts and a minority group's ability to elect, but has never suggested that the inquiry required by Section 5 can be satisfied by examining only the number of majority-minority districts. In fact, the Court has acknowledged that the inquiry is a complex undertaking. See Georgia v. Ashcroft, 539 U.S. at 480 ("The ability of minority voters to elect a candidate of their choice is important but often complex in practice to determine."); see also Holder v. Hall, 512 U.S. 874, 883-84 (1994) (plurality opinion) ("[T]here may be difficulty in determining whether a proposed change would cause retrogression . . . ."). Defendants correctly argue that population demographics provide only a valid starting point, and demonstrating that Hispanics or another minority group constitute a citizen voting-age majority in a district may well not suffice, on its own, to demonstrate that they have the ability to elect. See, e.g., League of United Latin Am. Citizens v. Perry (LULAC), 548 U.S. 399, 428 (2006) (observing that "it may be possible for a citizen voting-age majority to lack real electoral opportunity"). Texas has been able to provide no authority to support its reliance on a single-factor test, and we decline to depart from the clear guidance of the Supreme Court's Section 5 precedent that assessing retrogression is a multifaceted, fact-specific inquiry.

In rejecting Texas' standard, this Court starts with the 2006 Amendments to Section 5. The fundamental question is whether any change proposed by Texas "will have the effect of diminishing the ability" of minorities "to elect" their preferred candidates. 42 U.S.C. § 1973c(b). Should there be any doubt, Congress emphasized that the "purpose" of § 1973c(b) is "to protect the ability" of minority citizens "to elect their preferred candidates." Id. § 1973c(d). Clearly, "ability to elect" is the statutory watchword.

In making its Amendments, Congress sought to restore the "ability to elect" standard promulgated by the Supreme Court in Beer. H.R. REP. NO. 109-478, at 45-46 ("[A] change should be denied preclearance under Section 5 if it diminishes the ability of minority groups to elect their candidates of choice. Such was the standard of analysis articulated by the Supreme Court in Beer v. United States . . . ."); see Beer, 425 U.S. at 141 (stating that the Section 5 standard "can only be fully satisfied by determining . . . whether the ability of minority groups to participate in the political process and to elect their choices to office is . . . affected"). The House of Representatives identified significant benefits to minority communities under the Beer standard. H.R. REP. NO. 109-478, at 45-46. In addition, the House Report specifically commented that "[v]oting changes that leave a minority group less able to elect a preferred candidate of choice, either directly or when coalesced with other voters, cannot be precleared under Section 5." Id. at 46 (emphasis added).

Thus, "being able" or "having the power" to elect - in the past (the benchmark) and the future (a proposed redistricting plan) - is what matters under Section 5. This Court concludes that a review of redistricting plans under Section 5 must be concerned with the functioning of the electorate, i.e., whether minority voters will be "effective [in their] exercise of the electoral franchise." Beer, 425 U.S. at 141.

Texas perceives "ability" and "opportunity" as interchangeable, but they represent different concepts that serve different purposes. In its motion, Texas identifies minority "opportunity districts" as significant under Section 5. An "opportunity" to elect is meaningful under Section 2 of the VRA, but not necessarily under Section 5.

Section 2 is violated upon a showing that minorities "have less opportunity than other members of the electorate to . . . elect representatives of their choice." 42 U.S.C. § 1973(b). Section 2 "was designed as a means of eradicating voting practices that minimize or cancel out the voting strength and political effectiveness of minority groups"; thus, it "bars all States and their political subdivisions from maintaining" any voting practice that, inter alia, dilutes the votes of minority citizens. Bossier I, 520 U.S. at 479 (internal quotation marks and citation omitted). A plaintiff claiming vote dilution under Section 2 must satisfy the three "Gingles factors:" 1) the minority group is sufficiently large and geographically compact to constitute a majority in a single member district; 2) the group is politically cohesive; and 3) there is sufficient bloc voting by the White majority to defeat the minority preferred candidate. Id. at 479-80 (citing Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986)). Under the first Gingles factor, a plaintiff must show that a sufficient minority population is present to have the potential or opportunity to elect its preferred representative in a single member district. Bartlett v. Strickland, 129 S. Ct. 1231, 1243 (2009) (plurality opinion) (citing Gingles, 478 U.S. at 50 n.17). That is, Section 2 concerns itself with the possibility of a minority group's present, but unrealized, opportunity to elect. See Bossier I, 520 U.S. at 480 ("Because the very concept of vote dilution implies -- and, indeed, necessitates -- the existence of an 'undiluted' practice against which the fact of dilution may be measured, a § 2 plaintiff must also postulate a reasonable alternative voting practice to serve as the benchmark 'undiluted' voting practice."). Without such a showing, there can be neither wrong nor remedy. Bartlett, 129 S. Ct. at 1243 (citing Growe v. Emison, 507 U.S. 25, 41 (1993)).

Under Section 2, demographic data is necessarily geared towards identifying minority voters' "opportunity" to elect. Thus, because Texas equates "opportunity" and "ability" districts, it relies on data analysis pertinent to Section 2 to sustain its analysis of retrogressive effect under Section 5. However, population demographics alone will not fully reveal whether minority citizens' ability to elect is or will be present in a voting district. Demographics alone cannot identify all districts where the effective exercise of the electoral franchise by minority citizens is present or may be diminished under a proposed plan within the meaning of Section 5.*fn21 See, e.g., LULAC, 548 U.S. at 428.

The question of retrogressive effect under Section 5 looks at gains that have already been realized by minority voters and protects them from future loss. A Section 5 claim requires a determination of how and where minority citizens' ability to elect is currently present in a covered jurisdiction and how it will manifest itself in a proposed plan. This requires identifying districts in which minority citizens enjoy an existing ability to elect and comparing the number of such districts in the benchmark to the number of such districts in a proposed plan to measure the proposed plan's effect on minority citizens' voting ability. See Bossier I, 520 U.S. at 478 ("Retrogression, by definition, requires a comparison of a jurisdiction's new voting plan with its existing plan."). Determining where and how the ability to elect is present is a careful inquiry. This Court finds that the simple voting-age population statistics used by Texas are insufficient, and we cannot be confident that Texas has properly identified existing ability districts in its benchmark or future ability districts under the proposed Plans. Therefore, this Court can neither count the former nor compare them to the latter. There are no easy shortcuts in this inquiry. In particular, language minority status or race does not constitute a simple proxy for partisan preference in gauging the ability to elect. See, e.g., Bush v. Vera, 517 U.S. at 968 ("[T]o the extent that race is used as a proxy for political characteristics, a racial stereotyping requiring strict scrutiny is in operation.").

B. The Correct Legal Standard Governing Retrogression Analysis

1. Ability-to-Elect Factors

If population statistics alone are insufficient to determine the existence and location of ability districts, what factors are relevant to an inquiry into retrogressive effect under Section 5? Below we outline the types of factors that are relevant for this analysis. Our list of factors is not exhaustive. It merely highlights the kinds of factors missing from the standard Texas used to seek preclearance.

At the outset, a court addressing a proposed voting plan under Section 5 must determine whether there is cohesive voting among minorities and whether minority/White polarization is present in the jurisdiction submitting the plan. See, e.g., Georgia v. Ashcroft, 539 U.S. at 485 ("[I]t is of course true that evidence of racial polarization is one of many factors relevant in assessing whether a minority group is able to elect a candidate of choice . . . ."). Polarized voting occurs when minority and White communities cast ballots along racial or language minority lines, voting in blocs. See H.R. REP. NO. 109-478, at 20. Polarized voting between minorities and Whites often renders minority voters powerless to elect their candidate of choice because White voters will not cross over to elect a minority-preferred candidate. Id. Furthermore, polarized voting often signals that minority communities in fact prefer different candidates than the majority and helps to identify districts in which minority voters are effective in electing their candidates of choice.

Next, this Court agrees with all parties that population statistics are significant and an important starting point for a retrogression analysis. Drawing a district with a "safe" minority population can essentially guarantee electoral success for minority voters, regardless of challenges posed by racially polarized voting. See Georgia v. Ashcroft, 539 U.S. at 480-81 (noting that "majority-minority districts may virtually guarantee the election of a minority group's preferred candidates in those districts"). Even when voting is polarized, a minority group that constitutes a supermajority in a district will likely have the ability to elect its chosen candidate. A district with a minority voting majority of sixty-five percent (or more) essentially guarantees that, despite changes in voter turnout, registration, and other factors that affect participation at the polls, a cohesive minority group will be able to elect its candidate of choice.*fn22

Where such a circumstance is present, there would be no need to make further inquiries into minority voters' ability to elect. However, when there is no supermajority in a district, a Section 5 analysis must go beyond mere population data to include factors such as minority voter registration, minority voter turnout, election history, and minority/majority voting behaviors.*fn23

Determining that minorities have an ability to elect based solely on their numbers in the voting population of a district cannot account for the most fundamental concern of Section 5: the effect past discrimination has on current electoral power. 42 U.S.C. § 1973b(b); see Riley, 553 U.S. at 412 (noting that a jurisdiction is covered under Section 5 if among other things, "on one of three specified coverage dates . . . it maintained a literacy requirement or other 'test or device' as a prerequisite to voting"). As the Intervenors note, historical discrimination against Hispanics in Texas has, in some areas of the State, continued to depress their educational and economic conditions such that the mere attainment of citizen voting-age status might have no real effect on their ability to elect representatives of choice. See Latino Redistricting Task Force's Statement of Material Facts in Dispute [Dkt. # 78-1] at ¶ 257 ("Lower levels of education, income, and earnings have the lingering effect of lowering Latino [electoral] participation rates, including registering and voting."). The Supreme Court has also noted that "the political, social, and economic legacy of past discrimination for Latinos in Texas may well hinder their ability to participate effectively in the political process." LULAC, 548 U.S. at 440 (internal quotation marks and citations omitted). Such a background requires a more complicated retrogression analysis than Texas wants this Court to approve, but it is part and parcel of discerning whether minority voters will be effective in their exercise of the electoral franchise. Because the statutory watchword is "ability to elect," data that pertains to actual minority citizen voting strength must be analyzed for each relevant district.

In particular, minority voter registration and minority voter turnout can be important indicators of whether historical barriers to minorities' ability to elect have been eradicated.*fn24 For example, the Senate Committee on the Judiciary found during the 2006 reauthorization of the VRA that Latino voters nationwide turned out and voted at rates significantly lower than White voters. In addition, the Committee found that in Texas, while 41.5 percent of Latinos were registered to vote, only approximately 29.3 percent turned out in the 2004 election. See S. REP. NO. 109-295, at 11. Such findings underscore why Texas' reliance on a bare majority-minority district cannot be used to determine an ability district under Section 5. Given its history, Texas cannot overlook education and employment levels affecting minority electoral participation and remnants of historic discrimination that may continue to affect voting in some areas of the State. Minority voter registration and turnout, together with other evidence of election results and minority voting behavior, will supplement any court's analysis of population trends when counting ability districts in the benchmark and proposed plans.

Other factors are also relevant in the determination of whether past gains in minority citizens' ability to elect will be diminished by "any" change in voting practices. Although the Supreme Court has never outlined all factors relevant to this inquiry, it has emphasized that retrogression analysis "is often complex in practice to determine." Georgia v. Ashcroft, 539 U.S. at 480. We conclude that the type of factors relevant to this complex inquiry may include the number of registered minority voters in redrawn districts; population shifts between or among redrawn districts that diminish or enhance the ability of a significant, organized group of minority voters to elect their candidate of choice; an assessment of voter turnout in a proposed district; to the extent discernible, consideration of future election patterns with respect to a minority preferred candidate; and new ability districts that would offset any lost ability district.*fn25

Although Intervenors urge this Court to find retrogression when redistricting dismantles a voting district in which a minority group was on the cusp of achieving majority status, this Court will not consider this as a factor in our retrogression analysis. The argument that the VRA protects predictable future gains in minority electoral power is directly at odds with Section 5's purpose to protect against retrogressive effect. See Beer, 425 U.S. at 140 (Section 5 was enacted "to shift the advantage of time and inertia from the perpetrators of the evil to its victim, by freezing election procedures in the covered areas unless the changes can be shown to be nondiscriminatory." (internal quotation marks and citations omitted)). Redistricting can have no retrogressive effect on an ability to elect that has not yet been realized. City of Pleasant Grove v. United States, 479 U.S. 462 (1987), cited by TLBC, LULAC, and the Texas State Conference of NAACP Branches, does not change this assessment. As discussed further below, Pleasant Grove was a discriminatory purpose case. 479 U.S. at 471-72. The decision did not address whether it would be retrogressive to suppress emerging voting strength in a redistricting effort. In line with Beer and the language of Section 5, this Court finds that evidence of preventing an emerging ability to elect from crystallizing will not support the contention that a plan has an impermissible retrogressive effect under Section 5.

Finally, Texas argues that the United States' analysis of retrogression, reflected in the 2011 DOJ Guidance, is elusive and expensive. We disagree. Although our analysis is not identical to the 2011 DOJ Guidance, it shares many factors. The 2011 Guidance is consistent with the guidance DOJ has been issuing to assess retrogressive effect for the past two decades.*fn26

Covered jurisdictions, including Texas, have been able to preclear voting plans under its various iterations. *fn27 Thus, despite Texas' arguments to the contrary, this Court is hard-pressed to find that a multi-factored test - dependent on population analyses and other factors - is too new, too expensive, or too complex for covered jurisdictions to follow.

2. Coalition Districts

In counting ability districts, Texas ignored those in which coalitions of minority voters and coalitions of minority and White voters formed to support the minority-preferred candidate. But Section 5 requires such consideration in determining whether minorities have the ability to elect preferred candidates. The statute states no preference for how the minority group is able to elect its preferred candidate, whether by cohesive voting by a single minority group or by coalitions made up of different groups.*fn28 Indeed, the Supreme Court has recognized the value of voting coalitions formed by minority voters:

[T]here are communities in which minority citizens are able to form coalitions with voters from other racial and ethnic groups, having no need to be a majority within a single district in order to elect candidates of their choice . . . . [M]inority voters are not immune from the obligation to pull, haul, and trade to find common political ground.

Georgia v. Ashcroft, 539 U.S. at 481 (quoting Johnson v. De Grandy, 512 U.S. 997, 1020 (1994)) (internal quotation marks omitted). It is simply a fact of political life that in certain districts, a single minority group may not have the ability to achieve desired electoral outcomes independently, but could elect its preferred candidate if it formed either a crossover district by "attract[ing] sufficient crossover votes from white voters," Voinovich v. Quilter, 507 U.S. 146, 154 (1993), or a coalition district by partnering with another minority group.*fn29

Texas contends that the 2006 Amendments that overruled Georgia v. Ashcroft also rejected the idea that coalition politics should be taken into account under Section 5. This argument has no support in the text of the Amendments themselves and misreads the legislative history. Congress only took issue with Georgia v. Ashcroft to the extent that it held that states could trade "influence" districts for prior "ability" districts without issue under Section 5. See H.R. REP. NO. 109-478, at 44("[T]he Supreme Court would allow the minority community's own choice of preferred candidates to be trumped by political deals struck by State legislators purporting to give 'influence' to the minority community. . . . Permitting these trade-offs is inconsistent with the original and current purpose of Section 5."). Congress never found that coalition districts could not provide minority citizens with the ability to elect.*fn30

Texas also cites Bartlett v. Strickland to argue that the Supreme Court has rejected the notion that a Section 5 analysis can take political coalitions into account, but Bartlett is not a Section 5 case and does not deal with coalition districts. See 129 S. Ct. at 1242-43 (stating that the Court did not address "coalition-district claims in which two minority groups form a coalition to elect the candidate of the coalition's choice"). Like Section 2 cases before it, a plurality of the Court in Bartlett held that a compact minority group needs to have the potential ("opportunity") to constitute a majority in a district for there to be a Section 2 violation. Id. at 1244 ("Only once, in dicta, has this Court framed the first Gingles requirement as anything other than a majority-minority rule."). Thus, the Bartlett Court held that Section 2 does not require states to create potential crossover districts to ensure equal electoral opportunity for minority voters because nothing in Section 2 grants special protection to minority citizens' "right[] to form political coalitions." Id. at 1243. Yet, freedom from an obligation to create a crossover district under Section 2 does not equate to freedom to ignore the reality of an existing crossover district in which minority citizens are able to elect their chosen candidates under Section 5.

Since coalition and crossover districts provide minority groups the ability to elect a preferred candidate, they must be recognized as ability districts in a Section 5 analysis of a benchmark plan. Coalition and crossover districts that continue unchanged into a proposed plan must be counted as well. Our recognition that crossover and coalition districts are ability districts in a benchmark plan is rooted in the fact that there must be discrete data, by way of election returns, to confirm the existence of a voting coalition's electoral power. For example, evidence that a coalition had historical success in electing its candidates of choice would demonstrate that the minority voters in that district had, and would continue to have, an ability to elect their preferred candidates. Proving the existence of a coalition district will require more exacting evidence than would be needed to prove the existence of a majority-minority district as demonstrating past election performance is vital to showing the existence of an actual coalition district.

By contrast, a state creating a "new" crossover or coalition district simply anticipates, or hopes, that the minority population in the new district will align politically and coalesce with other groups of voters to elect its candidates of choice. It would be extremely difficult to confirm that minority voters would indeed have the ability to elect in the newly formed district.*fn31 Since potential new crossover-coalition districts are "subject to [this] high degree of speculation and prediction," Bartlett, 129 S. Ct. at 1245, they can rarely be deemed ability districts in a proposed plan.

3. Retrogression in Proportional Versus Absolute Terms

The Defendants argue that retrogression should be assessed on a plan-wide basis, contending that a relative overall decrease in minority citizens' share of electoral districts is retrogressive. According to this argument, Texas' failure to draw one or more additional Hispanic ability districts in the Congressional Plan is retrogressive in the face of the Hispanic population growth in Texas that is in large measure responsible for the State's four new congressional seats. In support, they cite Georgia v. Ashcroft: "[I]n examining whether [a] new plan is retrogressive, the inquiry must encompass the entire statewide plan as a whole." 539 U.S. at 479. But that language does not support the Defendants' argument. It was speaking to a state's ability under Section 5 to offset the loss of an ability district in one area of a state by the gain of a new ability district elsewhere. Id.

Texas relies on Abrams v. Johnson, 521 U.S. 74 (1997), which rejected the idea that the addition of electoral districts necessarily requires the addition of minority ability districts. In Abrams, Georgia gained a single new congressional district because of a population increase. This new district was not a minority ability district. The plaintiffs argued that the new plan was retrogressive because by failing to draw the new district as an ability district, the percentage of majority Black districts in the State decreased from ten percent to nine percent. 521 U.S. at 97. The Supreme Court rejected the argument, stating that if it found retrogression on such facts, "each time a State with a majority-minority district was allowed to add one new district because of population growth, it would have to be majority-minority. This the Voting Rights Act does not require." Id. at 97-98.

The United States distinguishes Abrams, relying on the substantial growth in Texas' Hispanic population, Texas' four new congressional seats (an unprecedented number for States fully covered by Section 5),*fn32 and the new provisions of the 2006 Amendments. It urges this Court to limit Abrams to its facts, arguing that although a state need not add a new ability district for each new district, under the facts of this case it was retrogressive for Texas not to add any new ability districts.

This Court concludes that Abrams does not control. Although Abrams is clear that the VRA does not require there to be a new minority ability district for every new congressional seat, it does not hold that a state's failure to draw new minority districts can never be retrogressive. Nevertheless, this Court concludes that Texas' failure to draw new Hispanic ability districts to match the growth of its Hispanic population was not retrogressive. Section 5 is limited to preventing "[s]tates from undoing or defeating the rights recently won" by minorities, Beer, 425 U.S. at 140 (quoting H.R. REP. NO. 91-397, at 8) (internal quotation marks omitted); it does not require states to add additional protections, id. (quoting H.R. REP. NO. 94-196, at 57-58) (internal quotation marks omitted), or to create new minority districts in proportion to increases in the minority group's population. Id. at 137 n.8 ("This Court has, of course, rejected the proposition that members of a minority group have a federal right to be represented in legislative bodies in proportion to their number in the general population."). Here, where Texas' percentage gain in congressional seats (12.5%) is similar to Georgia's percentage gain in Abrams (10%), we see no need to require of Texas what the Supreme Court did not require of Georgia.

Although Texas' alleged failure to account for the significant increase of the Hispanic population in the State does not establish retrogression, it is relevant to the Court's evaluation of whether the Congressional Plan was enacted with discriminatory purpose. A redistricting plan that does not increase a minority group's voting power, despite a significant growth in that minority group's population, may provide significant circumstantial evidence that the plan was enacted with the purpose of denying or abridging that community's right to vote.*fn33

Cf. City of Pleasant Grove, 479 U.S. at 471 ("Section 5 looks not only to the present effects of changes, but to their future effects as well . . . . Likewise, an impermissible purpose under § 5 may relate to anticipated as well as present circumstances.").*fn34 The Defendants are therefore incorrect as to the form, but not necessarily as to the substance of their argument. A state's failure to account for a minority group's population growth that results in additional electoral seats, while not conclusive of an unlawful retrogressive effect under Section 5, may be nonetheless highly relevant and probative to the purpose inquiry.

C. Discriminatory Purpose

Summary judgment is also not appropriate because Texas has failed to demonstrate that the Plans do not have the purpose of "denying or abridging the right to vote on account of race or color, or [membership in a language minority group]." Texas argues that its legislators had no animus towards any racial or language minority group but acted from purely partisan motives in drawing its redistricting Plans. Texas further argues that significant federalism concerns would be raised if a federal court were to examine the actions of its State legislature.*fn35 The United States responds that a discriminatory purpose that violates Section 5 does not always require an intent to target a minority group but can include a plan enacted in a discriminatory manner, even if designed to achieve a permissible aim.*fn36 The Intervenors present some evidence supporting their claims of discriminatory purpose, but also suggest that further discovery is needed. At oral argument, Texas contended that, even if taken as true, the evidence presented by the United States and Intervenors is insufficient to prove discriminatory intent.

We conclude that there are genuine issues of material fact regarding whether the Plans were enacted with discriminatory intent. As discussed earlier, the 2006 Amendments make illegal any changes to voting qualifications, requirements, standards, practices, or procedures that are adopted or pursued in order to deny or abridge the right to vote "on account of" a particular characteristic protected by the statute. 42 U.S.C. § 1973c(a)-(c). As the Supreme Court reminds us in Arlington Heights, "Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." 429 U.S. at 266; see also Cromartie, 526 U.S. at 546 ("The task of assessing a jurisdiction's motivation, however, is not a simple matter; on the contrary, it is an inherently complex endeavor . . . ."). Such an intensely fact-driven inquiry is typically difficult to resolve at the summary judgment stage.

The United States asserts that there is ample circumstantial evidence of discriminatory purpose with regard to the State House and Congressional Plans that raises a genuine dispute of material facts. Likewise, the Intervenors challenge the Plans overall, their general impact on Hispanic voters,*fn37 the rushed sequence of events that preceded their adoption, procedural and substantive departures from past practice, and treatment of specific districts and communities within each Plan.

Texas only countered arguments from the United States and those Intervenors that challenge the State Senate Plan. In its brief and at oral argument, Texas offered three responses to Defendants' claims of discriminatory purpose: 1) the State's obligation to its own Constitution, which specifically bans unnecessarily dividing counties to form voting districts, see TEX. CONST. art. III, § 26; 2) political logic: Hispanics are Democrats, Democrats are the party out of power in the State, and, therefore, it is politics not illegal animus that accounts for any alleged circumstantial evidence of discriminatory purpose*fn38 ; and 3) affidavit testimony by Texas legislators and their staff that no discriminatory purpose was espoused by any member of the Texas Legislature, any staff, or anyone else when offering redistricting proposals. Yet Texas has not disputed many of the Intervenors' specific allegations of discriminatory intent. This Court concludes that the United States and Intervenors have provided sufficient evidence to preclude summary judgment and to require further review of the claims of discriminatory purpose directed to all three Plans.

IV. CONCLUSION

Section 5 requires a multi-factored, functional approach to gauge whether a redistricting plan will have the effect of denying or abridging minority citizens' ability to elect representatives of their choice. It does not lend itself to formalistic inquiry and complexity is inherent in the statute. The ability to elect can rarely be measured by a simple statistical yardstick, as is the essence of Texas' approach. Defendants also challenge all three Plans as discriminatory in purpose, but genuine disputes of material fact preclude summary judgment on this record. For these reasons, the motion for summary judgment filed by the State of Texas was denied.

THOMAS B. GRIFFITH United States Circuit Judge

/s/ ROSEMARY M. COLLYER United States District Judge /s/ BERYL A. HOWELL United States District Judge


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