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