                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

                                              )
STATE OF TEXAS,                               )
                                              )
               Plaintiff,                     )
                                              )
                         v.                   )       Civil Action No. 11-1303
                                              )       (TBG-RMC-BAH)
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.         )
                                              )


                                  MEMORANDUM OPINION

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

               COLLYER, District Judge:

               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 plans1 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 Intervenors2 (collectively with the United States, the “Defendants”) filed answers

challenging the Congressional Plan, the State House Plan, and the State Senate Plan. No one



1
  Redistricting is a process by which national, state, and local voting districts are redrawn, normally after each
national census because of population changes over the intervening decade.
2
   This Court has granted seven parties status as Defendant-Intervenors. Each Intervenor contests various aspects of
one to three of the plans in their capacity as individual voters, state elected representatives, or civil rights advocacy
groups. The Davis Intervenors are Texas State Senators and representatives from districts in the Fort Worth area.
The Mexican American Legislative Caucus is a caucus group in the Texas House of Representatives. The Gonzales
Intervenors are a group of Hispanic and Black voters residing in Texas. The Texas Legislative Black Caucus is
composed of seventeen members of the Texas House of Representatives. The Texas Latino Redistricting Task Force
is a group of Hispanic organizations focusing on redistricting and voter registration. The Texas State Conference of
NAACP Branches and the League of United Latin American Citizens are civil rights and advocacy groups
concerned with minority voting rights in Texas.



                                                            2
challenges the redistricting plans for the State Board of Education.3 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.4 Litigation and court orders had been slow and often ineffective in

3
  The Texas State Board of Education (“BOE”) is composed of fifteen single-member districts. Texas claimed that
the benchmark plan for the BOE contained three Hispanic “opportunity” districts, with a Hispanic Citizen Voting
Age Population (“HCVAP”) of greater than fifty percent, and two Black “opportunity” districts, with a Black Voting
Age Population (“BVAP”) of greater than thirty percent. In the proposed BOE plan, Texas states that there are also
three Hispanic “opportunity” districts that have an HCVAP of greater than fifty percent, and two Black
“opportunity” districts with BVAPs of greater than thirty percent. This Court provided the parties another
opportunity to object to preclearance of the proposed BOE plan during a teleconference held on September 21, 2011.
After no party voiced opposition, this Court entered declaratory judgment in favor of Texas on that plan on
September 22, 2011. See Minute Entry Order (Sept. 22, 2011). Consequently, the BOE plan is not in contention
here.
4
  The VRA was extended in 1975 to cover members of language minority groups, such as Hispanics. Through
reference to 42 U.S.C. § 1973b(f)(2) in both subsections (a) and (b), Section 5 extends its protection to language
minority groups:



                                                          3
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



            No voting qualification or prerequisite to voting, or standard, practice, or procedure
            shall be imposed or applied by any State or political subdivision to deny or abridge
            the right of any citizen of the United States to vote because he is a member of a
            language minority group.

42 U.S.C. § 1976b(f)(2).



                                                        4
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.5 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
5
  On July 27, 2006, President George W. Bush signed into law the Fannie Lou Hamer, Rosa Parks, & Coretta Scott
King Voting Rights Reauthorization & Amendments Act of 2006 (“2006 Amendments”), Pub. L. No. 109-246, 120
Stat. 577 (2006). This legislation was passed by a vote of 390-33 by the U.S. House of Representatives, and 98-0 by
the Senate.



                                                        5
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)).6 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.”).




6
  The House Committee on the Judiciary reported H.R. 9, the Fannie Lou Hamer, Rosa Parks, & Coretta Scott King
Voting Rights Reauthorization & Amendments Act of 2006, out of Committee by a vote of 33-1. There was no
dissenting minority opinion to the Committee Report.


                                                      6
                       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


                                                  7
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.


                                                  8
               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 a candidate 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


                                                  9
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

to reduce 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.




                                                10
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


                                                11
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,” 7 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
7
   Texas’ use of “opportunity district” connotes a measure of uncertainty that is not supported by the language of the
VRA. “Opportunity” denotes conditions that are “favorable” to such an outcome. See WEBSTER’S INTERNATIONAL
NEW DICTIONARY 1583 (3d ed. 2002) (defining “opportunity” as “a combination of circumstances, time, and place
suitable or favorable for a particular activity or action” (emphasis added)). The statutory standard is whether
minorities have an “ability to elect” a preferred candidate. An “ability” denotes the “the physical, mental, or legal
power to perform,” id. at 3, a concept that requires a greater degree of certainty that an event can occur. Thus, in
line with the language of Section 5, this Court references “ability districts” as districts that afford minority voters the
electoral power protected under Section 5. This term is used both for districts that have afforded minority voters the
ability to elect their preferred candidate in the past and those that predictively will do so in the future.



                                                            12
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


                                                  13
                   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.8

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

8
    The 2011 DOJ Guidance indicates that the DOJ also assesses:

                   whether minority concentrations are fragmented among different districts;
                   whether minorities are overconcentrated in one or more districts; whether
                   alternative plans satisfying the jurisdiction’s legitimate governmental interests
                   exist, and whether they were considered; whether the proposed plan departs
                   from objective redistricting criteria set by the submitting jurisdiction, ignores
                   other relevant factors such as compactness and contiguity, or displays a
                   configuration that inexplicably disregards available natural or artificial
                   boundaries; and, whether the plan is inconsistent with the jurisdiction’s stated
                   redistricting standards.

76 Fed. Reg. 7470-01, at 7472.



                                                          14
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




                                                  15
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,9 with Texas’ proposed redistricting Plans leads


9
  Texas identified the following benchmark plans. For the U.S. House of Representatives, the State identified plan
C100, which was implemented in 2006 by the U.S. District Court for the Eastern District of Texas in LULAC v.
Perry, 457 F. Supp. 2d. 716 (E.D. Tex. 2006). For the Texas House of Representatives, it identified plan H100,
which was implemented in 2001 by the same district court in Balderas v. Texas, No. 01-158, Final Judgment [Dkt #
458] (E.D. Tex. Nov. 28, 2001). For the Texas State Senate, it identified plan S100, which was implemented in
2001 after it received preclearance from the DOJ.



                                                        16
them to dispute which districts should be counted as minority ability districts in both the

benchmark and proposed Plans.10

                           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.11 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.12

                  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

10
   For example, Texas identified eight minority ability districts in the benchmark congressional plan while the
United States identified ten. Likewise, Texas identified forty-three minority ability districts in the benchmark plan
for the Texas House while the United States identified fifty.
11
  Texas identified Congressional Districts 15, 16, 20, 23, 27, 28, and 29 as Hispanic ability districts in the
benchmark.
12
   Without explaining its relevance, Texas also points out that CD 9, which has a more than thirty percent but less
than forty percent BVAP, will maintain that percentage under the proposed plan.



                                                          17
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


                                                 18
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.13 Texas responds that a redistricting plan that preserves the pre-

existing number of minority ability districts will always satisfy Section 5’s retrogression

standard.




13
   The United States and the Latino Redistricting Task Force Intervenors calculate that Hispanic voters have the
ability to elect preferred candidates in 21.9 percent of the benchmark districts but only in 19.4 percent of the districts
in the Congressional Plan.



                                                           19
                           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.14

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.15 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


14
   The thirty Hispanic ability districts that Texas identifies in the House benchmark plan are districts 31, 33-43, 74-
80, 104, 116, 117-119, 123-125, 140, 143, and 145.
15
  The United States identifies twelve Black ability districts under the benchmark plan, 22, 95, 100, 109-111, 131,
139, 141, 142, 146, and 147. It identifies HD 27 as a new Black ability district in the proposed State House Plan,
which brings its count of such districts to thirteen under the proposed plan.



                                                          20
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.16

                  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




16
   The United States asserts that Hispanic voters would lose the ability to elect their candidate of choice in HDs 33,
35, and 117 due to the reconfiguration of the Hispanic population in each district and racially polarized voting.
Additionally, the government states that Hispanic voters may also lose their ability to elect in HD 41. The
government’s expert was “unable to make a determination” regarding this district. U.S. Mem., Ex. 4 [Dkt. # 79-6]
at 1 n.1 (Handley House Report). Texas argues that HDs 35, 41, and 117 will remain majority-minority, although
there will be a decrease in HCVAP in HDs 35 and 41.


                                                          21
percent,17 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.18 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”) 10.19 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

17
   The Hispanic ability districts that Texas identifies in the State Senate benchmark plan are districts 6, 19-21, 26,
27, and 29.
18
     The Black ability districts that Texas identifies in the State Senate benchmark plan are districts 13 and 23.
19
   The Davis Intervenors provide a statement from County Commissioner Roy Brooks that Black and Hispanic
leaders “deliberately and aggressively recruited Wendy Davis to run in 2008 . . . . To elect our candidate of choice,
Blacks and Hispanics had to come together and vote together, which we did.” Davis Statement of Facts [Dkt. # 76-
2] at ¶ 4. The Davis Intervenors allege that Senator Davis was elected with ninety-nine percent of the Hispanic and
Black vote and that she only received thirty percent of the White vote. Id. at ¶ 6.


                                                            22
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.”20 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


20
  The HCVAP of benchmark SD 15 is twenty-four percent and the BVAP is 26.2 percent, thus, this district is not a
majority-minority district for either group individually.


                                                       23
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



                                                 24
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


                                                   25
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


                                                   26
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

5.21 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
21
   Section 2 challenges are most often concerned with vote dilution claims. This Court uses case law from Section
2 in this Section 5 analysis only as it speaks to circumstances that adversely impact minority citizens’ ability to
elect.



                                                        27
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


                                                  28
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.22


22
   The Supreme Court found a figure of sixty-five percent of total population to be reasonable to achieve a majority
of eligible minority voters in a district. United Jewish Orgs. of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 164
(1977). In a similar vein, the three-judge court in Mississippi v. United States, 490 F. Supp. 569 (D.D.C. 1979),
assessing a Section 5 challenge, found that:

                  Low black voter registration and voter turn-out combined with racial bloc voting
                  make it necessary for an electoral district in Mississippi to contain a substantial


                                                         29
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.23

                  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

                  majority of black eligible voters in order to provide black voters with an
                  opportunity to elect a candidate of their choice. It has been generally conceded
                  that, barring exceptional circumstances such as two white candidates splitting
                  the vote, a district should contain a black population of at least 65 percent or a
                  black VAP [voting age population] of at least 60 percent to provide black voters
                  with an opportunity to elect a candidate of their choice.

490 F. Supp. at 575. Likewise, the Seventh Circuit used a minority population figure of sixty-five percent in a
Section 2 case to identify when minorities are an “effective majority,” i.e., whether they have a “realistic opportunity
to elect officials of their choice” in a district. Ketchum v. Byrne, 740 F.2d 1398, 1410-15 (7th Cir. 1984). Ketchum
reached its figure by reasoning from a simple voting majority and augmenting it by five percent to account for low
voter registration among minority voters, five percent for low voter turnout, and five percent for youthful
population. Id. at 1415. If Ketchum had started with voting-age population, it would not have added five percent for
the youthful portion of the minority population. Id.
23
   Texas asks this Court to set the percentage for a “safe” district at forty percent BVAP and fifty percent HCVAP.
This Court has already noted that, standing alone, these percentages are insufficient to establish the existence of an
ability district. Texas’ expert seems to agree. Dr. John Alford reports that Hispanic voters will have an ability to
elect in a district in which the number of registered Hispanic voters exceeds fifty percent. U.S. Mem., Ex. 6 [Dkt. #
79-8] at 4 (Report of Dr. John Alford). In contrast, Texas relied on (citizen) voting-age population statistics alone.
Texas’ reliance on a forty percent BVAP and not a BVAP greater than fifty percent suggests that Texas also
recognizes the importance of factors beyond majority status in determining which districts will provide minority
voters the ability to elect.


                                                          30
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.24 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
24
   Texas provided some such data in its motion and reply brief, but made no arguments regarding its significance for
a retrogression inquiry. It continued to rely on population statistics to argue that its Plans do not have a retrogressive
effect.



                                                           31
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.25

                  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

25
   Nonetheless, it may be that retrogression in a proposed plan is unavoidable. Population losses or shifts can
decrease minority voter participation. States and other political jurisdictions legitimately consider geographic (e.g.,
mountains, water courses) and political (e.g., county lines, city lines) boundaries in drawing election districts. In
some circumstances, a non-retrogressive redistricting plan may not be possible given other legitimate constraints on
electoral maps. This Court agrees with the comment in the 2011 DOJ Guidance:

                  There may be circumstances in which the jurisdiction asserts that, because of
                  shifts in population or other significant changes since the last redistricting (e.g.,
                  residential segregation and demographic distribution of the population within
                  the jurisdiction, the physical geography of the jurisdiction, the jurisdiction’s
                  historical redistricting practices, political boundaries, such as cities or counties,
                  and/or state redistricting requirements), retrogression is unavoidable.

76 Fed. Reg. 7470-01, at 7472.



                                                          32
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.26


26
   The relevant DOJ guidance memoranda are those issued in 2001 and 1987. In those policy statements, the DOJ
(in different administrations and under different Attorneys General) listed factors exceedingly similar, if not
identical, to the ones that the DOJ currently asserts are relevant to a Section 5 retrogression analysis. Compare
Guidance Concerning Redistricting and Retrogression Under Section 5 of the Voting Rights Act, 42 U.S. § 1973c,
66 Fed. Reg. 5412-01, at 5413 (Jan. 18, 2001) with 76 Fed. Reg. 7470-01, at 7471. In the 2001 Guidance
Memorandum, the DOJ stated that it would begin its retrogression analysis by compiling all relevant census data;
such data was “the important starting point” for administrative evaluation of benchmark and proposed plans. See 66
Fed. Reg. 5412-01, at 5413 (indicating that DOJ would review “additional demographic and election data” to assess
the “actual effect” of proposed changes on minority populations and explicitly mentioning, as it did in 2011, that it
believed that “election history and voting patterns within the jurisdiction, voter registration and turnout information,
and other similar information are very important” to a VRA retrogression analysis). A Notice issued by the DOJ in


                                                          33
Covered jurisdictions, including Texas, have been able to preclear voting plans under its various

iterations. 27 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.28 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.




1987 was very similar. See Revision of Procedures for the Administration of Section 5 of the Voting Rights Act of
1965, 52 Fed. Reg. 486-01 (Jan. 6, 1987). DOJ noted in 1987 that many covered jurisdictions, much like Texas
before this Court, had urged it to adopt a retrogression standard that could be “applied to submitted changes in a
fairly mechanical way,” but the DOJ declined to adopt such an approach because it would be unrealistic to shorten
“[a] Section 5 determination [that] is . . . based on the appraisal of a complex set of facts that do not readily fit a
precise formula for resolving the preclearance issues.” Id. at 486.
27
  See Pl.’s Mem.[Dkt. # 41] at 3 (“[I]n 2003 the [Texas] Legislature decided to take up redistricting again and
enacted a congressional redistricting plan. That plan was precleared by the Department of Justice . . . .”).
28
   The House Report on the 2006 Amendments clearly recognized that coalition districts can work to form an ability
district, see H.R. REP. NO. 109-478, at 46, and, while the Senate emphasized majority-minority districts, it did not
distinguish or discard minority coalition districts. See S. REP. NO. 109-295, at 17.



                                                          34
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.29

                  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.30


29
   Dicta in Bartlett v. Strickland, a Section 2 case, differentiated between minority citizens’ “own choice” and the
choice made by a coalition. 129 S. Ct. at 1244; see also Voinovich, 507 U.S. at 154 (comparing crossover districts
to “influence” districts). This Court clarifies that coalition districts for Section 5 purposes are those in which the
candidate voted into office by the coalition is the minority-preferred candidate, whether that candidate is a member
of the minority or not. Identification of the minority preferred candidate is a factual question.
30
   In the Senate Report to the 2006 Amendments, Senator Jon Kyl wrote separately “to explain why [he] believe[s]
that Congress cannot require that state or local governments create or retain influence or coalition districts.” S. R EP.
NO. 109-295, at 22 (Additional views of Senator Kyl). Senator Kyl’s individual views regarding the scope of
protection afforded to minorities under Section 5 do not change this Court’s analysis, or call into question the
legislative intent regarding the 2006 Amendments. First, the Senate Report carries little weight as a piece of
legislative history or evidence of legislative intent. As noted by Senator Patrick Leahy and others, the Senate Report
was filed a week after the Act had been passed by both houses of Congress. The Senate Report was not considered
by Congress prior to a vote on the legislation, and Congress did not adopt or affirm its findings. Indeed, “post-


                                                           35
                  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,


passage legislative history is a contradiction in terms. Any after-the-fact attempts to re-characterize the legislation’s
language and effects [cannot] be credited.” S. REP. NO. 109-225, at 55 (Additional views of Senators Leahy,
Kennedy, Biden, Kohl, Feinstein, Feingold, Schumer, and Durbin). Second, as explained below, the statutory text
and the Supreme Court’s jurisprudence regarding Section 5 make clear that crossover and minority coalition districts
provide minority citizens the ability to elect their candidates of choice.


                                                           36
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.31 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

31
   Indeed, a state’s attempt to create future crossover districts may lead to the creation of “influence” districts that
Georgia v. Ashcroft approved and Congress rejected in the 2006 Amendments. In Georgia v. Ashcroft, the Court
approved Georgia’s creation of new influence and coalition districts in proposed redistricting plans to offset the loss
of majority-minority districts in the benchmark. 539 U.S. at 487. Specifically, the Supreme Court stated that
Georgia had probably met its burden of demonstrating non-retrogression because its strategy of increasing Black
voting strength by “‘unpacking’ minority voters in some districts to create more influence and coalitional districts
[was] apparent.” Id. As part of the 2006 reauthorization of the VRA, Congress rejected Georgia’s proposition that
creation of influence and coalition districts may be used to offset other losses of a minority population’s voting
power, specifically amending Section 5 to “make[] clear that . . . the comparative ‘ability [of the minority
community] to elect preferred candidates of choice’ is the relevant factor to be evaluated when determining whether
a voting change has a retrogressive effect.” H.R. REP. NO. 109-478, at 46. The House Report to the 2006
Amendments explained the “concern[] . . . that ‘[m]inority influence is nothing more than a guise for diluting
minority voting strength’” and that “leaving the Georgia standard in place would encourage States to spread
minority voters under the guise of ‘influence’ and would effectively shut minority voters out of the political
process.” Id. at 45.


                                                           37
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),32 and the new provisions of the 2006 Amendments. It urges


32
  Notably, after the 1990 Census, Texas gained three additional congressional seats in response to which it created
two new majority Black districts and a majority Hispanic district “with a view to complying with the Voting Rights


                                                        38
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


Act.” See Bush v. Vera, 517 U.S. at 957. All three districts, however, were found to be the product of an
unconstitutional racial gerrymander. Id. at 979-86.



                                                        39
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.33

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.”).34 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.




33
  Based upon its identification of minority ability districts, the United States contends that nearly half a million
Hispanics would lose their ability to elect in the proposed Congressional Plan.
34
   In City of Pleasant Grove, an “all-white enclave in an otherwise racially mixed area of Alabama,” sought
preclearance for the annexation of two parcels of land, one vacant and another containing a few white residents. 479
U.S. at 465. The three-judge district court declined to grant preclearance, concluding that the jurisdiction had failed
to demonstrate that the annexations did not have the purpose of abridging the minority population’s right to vote.
The Supreme Court affirmed the three-judge court, concluding that there was sufficient evidence to support the
allegation that the city was annexing non-Black areas but refusing to annex Black areas. Despite the fact that there
were “no black voters in Pleasant Grove” and the annexations therefore could not have an effect on Black voting in
the city, the Court explained:

                  [A]n impermissible purpose under § 5 may relate to anticipated as well as
                  present circumstances . . . . Common sense teaches that appellant cannot
                  indefinitely stave off the influx of black residents and voters . . . . One means of
                  thwarting this process is to provide for the growth of a monolithic white voting
                  block, thereby effectively diluting the black vote in advance. This is just as
                  impermissible a purpose as the dilution of present black voting strength. To
                  hold otherwise would make appellant's extraordinary success in resisting
                  integration thus far a shield for further resistance. Nothing could be further from
                  the purposes of the Voting Rights Act.

Id. at 471-72 (citations omitted).



                                                           40
                   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.35 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.36 The Intervenors present

35
   Texas does not challenge the constitutionality of Section 5, see Complaint [Dkt. # 1], but relies on the
Constitution as a shield. Texas argues that the 2006 Amendments only forbid states from making those changes that
would themselves violate the Fourteenth Amendment’s guarantee of equal protection and the Fifteenth
Amendment’s guarantee that the right to vote shall not be “denied or abridged by the United States or by any State
on account of race, color, or previous condition of servitude.” U.S. CONST. amend XIV, § 2; id. amend. XV, § 1. A
simple comparison of Section 5 and these Reconstruction-era Amendments shows that they do not track and Texas’
contention cannot be accepted wholesale. The Fifteenth Amendment does not protect language-minority voters and
the Fourteenth Amendment does not apply to a language minority qua language minority. See Soberal-Perez v.
Heckler, 717 F.2d 36, 41 (2d Cir. 1983) (“Language, by itself, does not identify members of a suspect class.”); but
see Olagues v. Russoniello, 797 F.2d 1511, 1521 (9th Cir. 1986) (distinguishing Soberal-Perez v. Heckler and
stating that a non-English speaking classification is facially neutral but is, for all practical purposes, a classification
based on race and national origin and therefore suspect), vacated as moot, 484 U.S. 806 (1987). Thus, while both
Amendments are relevant to the legitimacy of a redistricting plan as to other minorities, they are not determinative
and provide only guidance as to language minorities, such as Hispanics.
36
  The United States cites Judge Kozinski’s opinion concurring in part and dissenting in part in Garza v. County of
Los Angeles, 918 F.2d 763 (9th Cir. 1990), for this proposition:

                   Assume you are an anglo [sic] homeowner who lives in an all-white
                   neighborhood. Suppose, also, that you harbor no ill feelings toward minorities.
                   Suppose further, however, that some of your neighbors persuade you that having
                   an integrated neighborhood would lower property values and that you stand to
                   lose a lot of money on your home. On the basis of that belief, you join a pact not
                   to sell your house to minorities. Have you engaged in intentional racial and
                   ethnic discrimination? Of course you have. Your personal feelings toward
                   minorities don’t matter; what matters is that you intentionally took actions
                   calculated to keep them out of your neighborhood.

918 F.2d at 778 n.1.



                                                            41
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,37 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.

37
   For example, there are allegedly no new Hispanic ability districts in the Congressional Plan, despite Hispanics’
substantial population growth in Texas. The Gonzales Intervenors allege, however, that although Whites now
constitute 45.3 percent of the State’s population, Whites are a majority of the voting-age population in twenty-five
out of thirty-six congressional districts, an increase from twenty-two in the benchmark.



                                                         42
                  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 purpose38; 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




38
   But see 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.”).



                                                           43
this record. For these reasons, the motion for summary judgment filed by the State of Texas was

denied.



Date: December 22, 2011                                           /s/
                                                   THOMAS B. GRIFFITH
                                                   United States Circuit Judge


                                                                  /s/
                                                   ROSEMARY M. COLLYER
                                                   United States District Judge


                                                                  /s/
                                                   BERYL A. HOWELL
                                                   United States District Judge




                                              44
