Lawson v. Vera Brief of Appellants
Public Court Documents
October 2, 1995
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Brief Collection, LDF Court Filings. Lawson v. Vera Brief of Appellants, 1995. ebba5cb6-ba9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/4a01ea35-42b9-47b5-8a4a-ba7b5d21aa44/lawson-v-vera-brief-of-appellants. Accessed August 31, 2025.
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No. 94-806
In The
S u p rem e C ourt of tfte U ntteb i£>tateg
October Term, 1995
Rev . William Lawson et al., Appellants,
R obert Reyes, et al., Appellants
Al Vera , et al., Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF TEXAS
BRIEF OF APPELLANTS
Antonia Hernandez
Anthony E. Chavez
Mexican American Legal
Defense & Educational Fund
634 South Spring Street
Los Angeles, CA 90014
(213) 629-2512
Carmen Rumbaut
Counsel o f Record, LULAC
Appellants
Mexican American Legal
Defense & Educational Fund
140 E. Houston, Suite 300
San Antonio, Texas 78205
(210) 224-5476
*Additional Counsel Inside
Cover
Elaine R. Jones
Director-Counsel
Theodore M. Shaw
Associate Director-Counsel
Norman J. Chachkin
NAACP Legal Defense &
Educational Fund, Inc.
99 Hudson Street, 16th Floor
New York, New York 10013
(212) 219-1900
Penda D. Hair
Counsel o f Record, Lawson
Appellants
NAACP Legal Defense &
Educational Fund, Inc.
1275 K Street, N.W., Suite 301
Washington, D.C. 20005
(202) 682-1300
Charles Drayden
Drayden, Wyche & Wood,
L.L.P.
1360 Post Oak Blvd.
Suite 1650
Houston, Texas 77056
(713) 965-0120
Lawrence Boze
2208 Blodgett
Houston, TX 77004
(713) 520-0260
Kevin Wiggins
White, Hill, Sims & Wiggins
2500 Trammel Crow Center
2001 Ross Avenue
Dallas, Texas 75201
(214) 954-1700
QUESTIONS PRESENTED
I. W hether Texas’ Congressional Districts 18, 29 and 30
should have been sustained even before reaching the
issue of strict scrutiny because race did not
predominate in the construction of these districts,
where:
a. "ideally" compact versions of Districts 18, 29
and 30 were rejected for incumbent
protection and other non-racial reasons;
b. the versions of Districts 18, 29 and 30
adopted by the Texas Legislature were no
more irregular than majority-white districts;
and,
c. areas included within Districts 18, 29 and 30
share common interests other than race?
II. Whether Texas’ Congressional Districts 18, 29 and 30
are narrowly tailored to serve a compelling interest?
III. Whether plaintiffs who have proved no injury have
standing to challenge a State districting plan as a
"racial gerrymander"?
l
PARTIES TO THE PROCEEDING
The State Appellants (No. 94-805) are Texas State
officials George W. Bush, Governor, Bob Bullock,
Lieutenant Governor, Pete Laney, Speaker of the House of
Representatives, Dan Morales, Attorney General, and
Antonio O. Garza, Jr., Secretary of State.
The Lawson Appellants (No. 94-806) are Rev.
William Lawson, Zollie Scales, Jr., Rev. Jew Don Boney,
Deloyd T. Parker, Dewan Perry, Rev. Caesar Clark, David
Jones, Fred Hofheinz and Judy Zimmerman.
The LULAC Appellants (No. 94-806) are Robert
Reyes, Angie Garcia, Robert Anguiano, Sr., Dalia Robles,
Nicolas Dominguez, Oscar T. Garcia, Ramiro Gamboa and
League of United Latin American Citizens (LULAC) of
Texas.
The United States is the Appellant in No. 94-988.
Appellees are A1 Vera, Edward Blum, Edward Chen,
Pauline Orcutt, Barbara L. Thomas and Kenneth Powers.
li
TABLE OF CONTENTS
Questions P resen ted ............................................... i
Parties to the Proceeding ....................................................... ii
Table of A u th o rities ...............................................................vii
Opinion B elo w ..................................................................... 1
Jurisdiction ............................... 1
Constitutional and Statutory Provisions In v o lv ed ........... 1
Statement ................................. 1
Proceedings B e lo w .............................................................. 1
Facts ...................................................................................... 3
A. The Major Factors Shaping Texas’ 1991
Congressional Redistricting ........................ 3
1. Incumbent p ro tec tion ....................... 3
2. Potential liability under the Voting
Rights A c t .................................................. 5
3. State legislators’ ambitions . .................... 7
4. Other Factors...................................................8
B. The Interplay of These F acto rs...................... 8
C. The Character of the Resulting Districts . . 11
iii
D. Representation of District Constituencies . 15
Plaintiffs’ Claims ............................................................... 17
The District Court’s Ruling .............................................. 18
Summary of Argument . ........................ .......................... 19
Argument . . ...................................................................... 21
I. The 1991 Plan, Including Districts 18, 29
And 30, Should Have Been Sustained Without
Strict Scrutiny ........................................................ 21
A. Race Did Not Predominate Either In The
State Of Texas’ Decision To Create
Majority-Minority Districts Or In The
Ultimate Configuration Of Those
Districts. ....................................................... . 22
B. Districts 18, 29 And 30 Encompass
Communities That Have Actual Shared
Interests ............................. 26
C. The Final Configuration Of The Districts
Resulted From A Constitutionally Permitted
Political Gerrymander, Not From An
Improper Racial G errym ander................... 27
D. The Lower Court’s Decision To Subject
Districts 18, 29 And 30 To Strict Scrutiny
Is Based On Serious Errors Of L a w .......... 30
1. The District Court erred in rejecting
incumbent protection as a "traditional"
districting criterion .................................. 30
IV
2. The district court erred as a matter of
law in refusing to recognize the goal of
incumbent protection as a non-racial
influence on district shape...................... 33
3. The district court applied the wrong
test and erred in ignoring the irregular
shapes of Texas’ majority-white
Congressional districts............................. 36
4. The district court erred in finding a
"racial gerrymander" from a combination
of awareness of racial demography,
valid consideration of race in the
districting process and the existence
of correlations between districting
factors and r a c e ...................................... 38
II. Districts 18, 29 and 30 Each Satisfy
Strict S c ru tin y ......................................................... 45
A. Districts 18, 29 and 30 Are Supported By
A Compelling State In te re s t....................... 46
1. Section 5 of the Voting Rights Act . . . 47
2. Section 2 of the Voting Rights Act . . . 48
a. "Reasonably compact" opportunity
districts ............................................. 48
b. Racially polarized voting and other
indicia of barriers to minority
political opportunity ........................ 49
v
B. Districts 18, 29 and 30 are Narrowly
Tailored .................................... ....................... 54
1. Districts 18, 29 and 30 meet this
Court’s requirements for narrow
ta ilo ring ....................... 54
2. The court below erred in interpreting
narrow tailoring to incorporate the
court’s preferred, "ideal" districting
criteria....................................... 56
a. The decision below forces the State
to discriminate against minority
communities of interest and minority
incumbents. . ................. ................ . 56
b. The decision below violates the
principle of federalism. . . . . . . . . . 58
III. The Plaintiffs Lack Standing .............................. 59
C onclusion............................................... 65
vi
TABLE OF AUTHORITIES
CASES PAGE
Adarand Constructors, Inc. v. Pena,
115 S. Ct. 2097, 2117 (1 9 9 5 )........................................... 45
African American Voting Rights Legal Defense
Fund, Inc. v. Villa, 54 F.3d 1345 (8th Cir. 1 9 9 5 ).......... 39
Allen v. Wright, 468 U.S. 737 (1984).......................... 59, 60
Beer v. United States, 425 U.S. 130 (1976) ...................... 47
Bums v. Richardson, 384 U.S. 73 (1966) ........................ 58
Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982),
aff’d, 459 U.S. 1166 (1 9 8 3 )........................................... 48
Chapman v. Meier, 420 U.S. 1 (1975) ...................... 32, 58
City o f Dallas v. United States,
482 F. Supp. 183 (D.D.C. 1979) .................................... 50
City o f Richmond v. Croson, 488 U.S. 469 (1 9 8 9 ) .......... 46
Davis v. Bandemer,
478 U.S. 109 (1986) .......................... .. . 28, 30, 38, 57, 61
DeWitt v. Wilson, 115 S. Ct. 2637 (1995),
affirming, 856 F. Supp. 1409
(E.D. Calif. 1994).................................... 23, 24, 25, 40, 48
Gaffney v. Cummings, 412 U.S. 735 (1973).............. 30, 33
Gomillion v. Lightfoot, 364 U.S. 339 (1960) ................... 15
vii
CASES PAGE
Growe v. Emison, 113 S.Ct. 1075 (1993) ___ . . . . . . . 57
Jeffers v. Clinton, 730 F. Supp. 196 (1989),
affd, 498 U.S. 1019 (1990) .............................................. 49
Johnson v. De Grandy,
114 S. Ct. 2647 (1994) . ................. ............. 47, 48, 49, 54
Karcher v. Daggett, 462 U.S. 725 (1 9 8 3 )................... 32
Lujan v. Defenders o f Wildlife,
504 U.S. 555 (1992) ...................... ............................ 59, 60
Miller v. Johnson, 115 S. Ct. 2475 (1995) ............ . passim
Milliken v. Bradley, 433 U.S. 267 (1977).............. ........... 58
Monroe v. City ofWoodville, Miss, 819 F.2d 507
(5th Cir. 1987), cert, denied, 484 U.S. 1042 (1988) . . . 39
Personnel Administrator v. Feeney,
442 U.S. 256 (1979) .......... .. ............ .............................. 35
Shaw v. Reno, 113 S. Ct. 2816 (1993) . . . . . . . . . . . passim
Terrazas v. Slagle, 821 F. Supp. 1162
(W.D. Tex. 1993) .................................. .. ............ .. 28
Thornburg v. Gingles, 478 U.S. 30 (1 9 8 6 )............ passim
United States v. Hays, 115 S.Ct. 2431 (1995)___ 21, 59, 60
United States v. Paradise, 480 U.S. 149 (1987) . . . . . . . 54
Voinovich v. Quilter, 113 S.Ct. 1149 (1993) . . . . . . . 46, 48 '
viii
CASES PAGE
Washington v. Davis, 426 U.S. 229 (1976)........................ 48
Washington v. Seattle School District No. 1,
458 U.S. 457 (1982) ......................................................... 57
White v. Weiser, 412 U.S. 783 (1973) ....... ....................... 32
Williams v. City o f Dallas, 734 F. Supp. 1317
(N.D. Tex. 1990)..................................................... 49, 50, 51
Wilson v. Eu, 4 Cal. Rptr. 2d 379 (1992) ............ 23, 24, 40
Wise v. Lipscomb, 437 U.S. 535 (1978) .......................... 58
Wright v. Rockefeller, 376 U.S. 52 (1964) ........................ 45
Wygant v. Jackson Board o f Education,
476 U.S. 267 (1986) ............................................. 45, 46, 54
CONSTITUTIONAL PROVISIONS and STATUTES
U.S. Constitution Amendment XIV
(Equal Protection Clause) ........................................passim
2 U.S.C. § 2 c ...........................................................................54
28 U.S.C. § 1253 ............................... .. ................................1
Voting Rights Act of 1965,
42 U.S.C. §§ 1973, 1973c .........................................passim
OTHER AUTHOIRTY
Webster’s Third International Dictionary (1981) ........... 31
IX
OPINION BELOW
The August 17,1994 opinion below is reported at 861
F. Supp. 1304 and is reproduced at TX J.S. 5a-84a.1
JURISDICTION
Timely Notices of Appeal were filed by the Lawson
Appellants on October 3, 1994 and by the LULAC
Appellants on September 29, 1994 (amended on November
4, 1994), respectively. TX J.S. la, 4a. The Court has
jurisdiction under 28 U.S.C. § 1253.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Equal Protection Clause of the Fourteenth
Amendment and §§ 2 and 5 of the Voting Rights Act of
1965, as amended, 42 U.S.C. §§ 1973, 1973c, are set out at
TX J.S. 2, 87a-88a.
STATEMENT
Proceedings Below
Appellees, six Republican Texas voters (including an
unsuccessful Republican candidate in the 1992 general
election in District 18) filed suit on January 26, 1994,
challenging at least 24 of Texas’ 30 Congressional districts.
See TX J.S. 9a & n.3. They claimed that Texas illegally used
race and ethnicity in constructing Congressional districts and
lThis brief uses the following abbreviations:
TX J.S. - Jurisdictional Statement and Appendix of State Appellants
J.A. - Joint Appendix
TR - Trial Transcript, volume:page
TX Ex. - State Defendants’ Trial Exhibit
Lawson Ex. - Lawson Defendant-Intervenors’ Trial Exhibit
LULAC Ex. - LULAC Defendant-Intervenors’ Trial Exhibit
U.S. Ex. - United States’ Trial Exhibit
PX - Plaintiffs’ Trial Exhibit
Dep. - Deposition
failed to follow what they alleged were "traditional"
districting principles. TX J.S. 10a.
The Lawson Appellants, six African-American and
three white voters residing in Districts 18 and 30; the
LULAC Appellants, the League of United Latin American
Citizens (LULAC) of Texas and seven Hispanic voters, one
of whom resides in District 29; and the United States, were
permitted to intervene as defendants. Id. at 11a.
The court below ruled that three districts — Texas’
only two African-American opportunity districts2 (Nos. 18
and 30) and one Hispanic opportunity district (No. 29) —
violated the Equal Protection Clause of the Fourteenth
Amendment.3 The court upheld the constitutionality of 21
other challenged districts (including new District 28), of
which 18 are majority-white and three are majority-
Hispanic.4
2The terms "majority-minority district" and "opportunity district" are
used interchangeably, to refer to districts that give a single minority,
either African-American or Hispanic, an opportunity to elect a candidate
of its choice. All of the Hispanic opportunity districts in the 1991 plan
have a Hispanic majority in both population and voting-age population
(VAP). District 18 has African-American population of 50.9% and VAP
of 48.6%, while District 30 has African-American population of 50.0%
and VAP of 47.1%. J.A. 158, 160.
districts 29 and 30 were first created after the 1990 Census. District
18 had been a minority-opportunity district since 1971 and its boundaries
were modified after the 1990 Census.
4On September 20, 1994, the court entered an order, nunc pro tunc
to September 2, 1994, enjoining the use of the current districts for the
1996 elections. On December 29, 1994, this Court stayed the district
court’s injunction. On June 29, 1995, this Court noted probable
jurisdiction, thus leaving the stay in effect.
2
Facts
A. Major Factors Shaping Texas’ 1991
Congressional Redistricting
The State of Texas was apportioned three additional
Congressional seats as a result of population growth revealed
by the 1990 census, increasing its total to 30. The
Legislature decided to center the three new districts in three
of the four counties with the largest population growth,
Harris, Dallas and Bexar.5
The district court concluded, on the basis of largely
undisputed evidence, that four types of factors combined to
shape the districts at issue in this case.
1. Incumbent protection.
More than a year in advance, the Texas
Congressional Delegation began work with the "overriding
objective" of "incumbency protection," seeking "to influence
the Legislature to draw districts that would maximize their
chances for reelection," TX J.S. 23a, 24a. The court below
noted that the Legislature "openly acknowledged" this fact:
"The incumbents ‘have practically drawn their own districts.
Not practically, they have.’" Id. at 24a (quoting Senator
Johnson, Chair, Subcommittee on Congressional Districts).
Traditionally, protection of incumbents has prevailed
over compactness in Texas Congressional redistricting. See
TX J.S. 15a (post-1960 creation of additional, statewide at-
large seat, to maintain status of all incumbents; configuration
of district running from the Houston area through rural east
Texas into the southern ends of both Tarrant and Dallas
5Most of that growth was attributable to increases in Hispanic and
African-American population. TX J.S. 13a. Tarrant County, which is
adjacent to Dallas County, was the other top growth area, id., so the new
Dallas district reflected the growth in this region.
3
Counties to protect seat of "Tiger Teague;"6 post-1970
redistricting "notable at least in part because of the great
lengths to which the state legislature went to solicit the views
of incumbent congressmen"). The court below cited Ted
Lyon, a former member of the Texas House and Senate
involved in post-1980 and post-1990 redistricting:
"[C]ompactness is not a ‘traditional districting principle’ in
Texas. For the most part, the only traditional districting
principles that have ever operated here are that incumbents
are protected and each party grabs as much as it can." Id.
at 15a n.9.7
In the 1991 redistricting, new technology permitted
the Legislature to go further than previously "on a block-by-
block or neighborhood- or town-splitting level to corral
voters perceived as sympathetic to incumbents or to exclude
opponents of incumbents." Id. at 55a. As the court below
found, citing the construction of invalidated Districts 18 and
29:
[M]any incumbent protection boundaries sabotaged
traditional redistricting principles as they routinely
divided counties, cities, neighborhoods, and regions.
6One member of the Texas Legislature remarked during the 1967
floor debates "that if you were to drive down Interstate 45 from the
northern border of C.D. 6 in southern Dallas and Tarrant counties to the
southern border of the district in the northern suburbs of Harris County,
with all the doors opened, you’d kill most of the voters in the district.’"
J.A. 298, 302 (statement of former State Senator Mauzy).
’Regular shapes and respect for political subdivisions have a weak
history, at best, as districting goals in Texas. See TX J.S. 15a n.9.
Although the court below thought that prior plans were more compact
than the 1991 plan, the Legislature in prior years undisputably lacked the
technological capacity needed to draw districts as precisely as those
adopted in 1991. Many legislators stated without contradiction that
compactness has never been a strong State interest in Congressional
districting. E.g. J.A. 391 (former State Senator Lyon); id. at 303 (former
State Senator Mauzy).
4
For the sake o f maintaining or winning seats in the
House of Representatives, Congressmen or would be
Congressmen shed hostile groups and potential
opponents.. . . The Legislature obligingly carved out
districts of apparent supporters of incumbents, as
suggested by the incumbents, and then added
appendages to connect their residences to those
districts.
Id. at 55a-56a (emphasis added) (footnotes and citations
omitted). In addition, a substantial part of the districts’
irregularity was caused by the goal of putting incumbents’
residences into their districts and not pairing incumbents in
the same district. "[Ijncumbent residences repeatedly fall
just along district lines." Id. at 24a.& * 8
Significantly, incumbent protection was an overriding
factor in shaping majority-white as well as minority
opportunity districts. Many Texas Congressional districts
were "disfigured less to favor or disadvantage one race or
ethnic group than to promote the reelection of incumbents."
Id. at 9a (footnote omitted).9
2. Potential liability under the Voting Rights Act.
The Legislature was aware as it redistricted of its
vulnerability under § 2 of the Voting Rights Act if it
fragmented an African-American or Hispanic population
concentration that was "sufficiently large and geographically
compact"10 to constitute an effective majority in a single
member district. It was well known that two such large and
&See TX J.S. 24a-25a (describing a half dozen such instances).
“See Addendum to this Brief (maps showing highly irregular shape of
interwoven, majority-white Districts 6 (including parts of five counties)
and 12, in comparison to invalidated District 30 (entirely within Dallas
metroplex)).
10Thornburg v. Gingles, 478 U.S. 30, 50 (1986).
5
geographically compact African-American populations
existed, in Harris County (Houston) and in Dallas County,
and that a sufficiently large and compact Hispanic
population existed in Houston. The fact that a compact,
majority-black district could be drawn in the Dallas area had
been well publicized at least since the early 1980’s, when the
African-American community was deliberately divided
between District 5 and District 24. Plaintiffs’ main lay
witness, Kent Grusendorf,11 a Republican member of the
House of Representatives, testified at trial that a compact,
viable African-American district was "absolutely" possible in
Dallas and that fairness required it. TR 1:99-101.12
In Harris County, District 18 had been represented
by an African American since the election of Barbara
Jordan. The Hispanic population had experienced
phenomenal growth and was sufficient to constitute the
majority in two Congressional districts. TX J.S. 13a. A
highly-publicized plan creating a new majority-Hispanic
district, while maintaining the opportunity of African
Americans to elect their candidate of choice in District 18,
was proposed by State Representative Roman Martinez at
the outset of the redistricting process.13
uPlaintiffs presented only two non-plaintiff witnesses at trial, Rep.
Grusendorf and their expert, Dr. Weber.
12Plaintiffs’ expert, Dr. Weber, testified that the Owens-Pate plan for
Dallas included a 45.6% African-American population district, J.A. 143,
which was "reasonably compact" and would give African Americans an
opportunity to elect a candidate of their choice in Dallas. TR 111:115.
See also TR 11:30-31, 127-131 (testimony of Dr. Weber).
13TX J.S. 36a-37a. Rep. Martinez’ plan did not split any precincts,
TX J.S. 39a, and it maintained the Democratic nature of District 25, thus
protecting white incumbent Mike Andrews, id. at 36a-37a. His plan
could have been even more compact if District 25 had not been drawn
to protect for incumbency. E.g. TR IV:41 (Democrats, including
Hispanics, were removed to District 25). The highly compact Owens -
6
State Exhibit 12, produced by Christopher Sharman,
the Legislature’s chief technician and map drawer, TX J.S.
26a, confirms what was obvious to the Legislature. Taking
no political, incumbency, geographic or factors other than
race and district shape into account, Mr. Sharman produced
an extremely compact version of District 18 that closely
parallels the population and African-American percentage of
existing District 18. Mr. Sharman testified that without
political and other influences, creation of a compact version
of District 18 was "fairly easy." TR IV:68. Similarly, Mr.
Sharman was able, when excluding incumbency and other
factors, to produce compact districts with minority
population comparable to that of the current Districts 29
and 30. Id. at 68-69; TX Ex. 12.
3. State legislators’ ambitions.
Closely related to incumbent protection is Texas’
tradition of tailoring new or vacant districts to be favorable
to aspiring members of the State Senate and House of
Representatives.14 In the 1991 plan, state legislators so
assisted included white Senator Green, African-American
Pate plan, see TX J.S. 49a, created districts with 53% African-American
population (Dist. 18) and a 52.9% Hispanic population (Dist. 28) in
Houston. J.A. 142. See also U.S. Ex. 1086, tape 2, at 19-20 (Texas
Republican Party’s studies indicated that a Hispanic opportunity district
"not a dragon or a dinosaur district with unreasonable contortions" could
"be created to serve a real community of interest . . . along with an
expanded existing Black Congressional district"). Dr. Weber testified that
a "reasonably compact" district with an African-American voting-age
majority was possible in the Harris County area in 1991. TR 111:113.
uSee TX Ex. 62 (chart listing examples). This tradition goes back at
least to 1971, when Congressional districts were drawn to promote the
election of then-Senators Charles Wilson and Barbara Jordan. U.S. Ex.
1071, at 10 (Deck of Dr. J. Morgan Kousser). See aho J.A. 394 (Edward
Martin).
7
Senator Johnson, Hispanic Senator Tejeda, and Hispanic
Representative Martinez.
4. Other factors.
Several other traditional factors affected district lines
and produced irregularities. The State achieved absolute
population equality, with each district having 566,217
residents, a feat that caused considerable irregularity.
Requests from communities to be in a particular district
were accommodated where possible. The placement of
industry, universities,15 airports, government installations
and other economic criteria was given great weight.16
B. The Interplay of These Factors
District 30. In Dallas, State Senator Eddie Bernice
Johnson intended to run for Congress from the new district.
She represented a compact, politically cohesive district in the
State Senate that was majority-minority. Senator Johnson
early in the process proposed creating a new district in
lsE.g., TR III: 182-183 (universities and factories).
16For example, the State intentionally placed NASA into three
different districts to enhance representation of this important state
interest. J.A. 249-50. See also id. at 249 (District 29 deliberately includes
major industries along Houston Ship Channel), 300 (location of
industries considered in 1967 redistricting). Other non-racial influences
include the tradition that Democrats would not seek affirmatively to
interfere with existing Republican seats; the desire of Democrats to
retain seats currently held by Democrats; the reluctance to redraw lines
in a manner that placed two incumbents in the same district; locations
of friends, supporters and family members of incumbents and aspirants;
and non-racial, idiosyncratic factors.
8
Dallas that overlapped substantially with her Senate district,
was compact, and did not split any precincts. However, as
found by the district court, her proposal "drew much
opposition from incumbents and was quickly abandoned."
TX J.S. 31a. See also id. at 49a.
The irregular contours of District 30 resulted from
accommodating the demands of incumbents Martin Frost
and John Bryant (both white) as well as other non-racial
interests. The western, irregular border of District 30 goes
out to Grand Prairie because Senator Johnson had
relatives17 in the City, as well as a political base that was
predominantly white. Congressman Frost also had strong
political ties to Grand Prairie and after a fierce battle, they
split the City in a compromise. See, e.g., TX J.S. 32a. The
portion of that City in District 30 is only 14.7% African
American. PX 34T. Also to the west, one large arm goes
out to Dallas-Fort Worth Airport, which all agreed was
included for strictly non-racial reasons.18 Irregularities in
Oak Cliff and in the eastern boundary resulted from
compromises with incumbents Frost and Brvant, TX J.S.
32a.
After Frost and Bryant won back territory on the east
and west of District 30, the District was forced further north,
because of the traditional one-person, one-vote requirement
of population equality among districts. But just north of the
predominantly African-American neighborhoods of South
Dallas are the affluent, highly Republican, Park Cities
neighborhoods, which both the incumbent and the residents
wanted to remain in Republican District 3. E.B. Johnson
17Plaintiffs’ expert testified that including the relatives of an African-
American incumbent is not a racial gerrymander, even if the relatives
also are black. TR 111:120.
wSee, e.g. TR 11:223-24, 111:116 (Plaintiffs’ expert concedes that
extension of District 30 to airport "didn’t have anything to do with race").
9
Dep. 130; U.S. Ex. 1038. District 30 accordingly was
configured around Park Cities (creating a huge incursion by
District 3 into the middle of District 30),19 and picked up a
large number of white residents,20 including a Jewish
community that was unhappy in District 3,21 two small
African-American communities, in Hamilton Park and
Plano, which shared many ties with South Dallas and whose
residents requested to be in District 30, and northern
corridor industry such as Texas Instruments to add to the
District’s economic stature.
Districts 18 and 29. The court below found that
factors other than race and ethnicity "influenced the
boundary drawing of the Harris County districts." TX J.S.
38a.22 The court noted that District 25, represented by white
incumbent Mike Andrews, "was to be kept intact and
Democratic," id. at 38a. A suggestion by Congressman Craig
Washington that District 18 be reconfigured based on the
shape of his former State legislative district "was
unacceptable ‘because it would have taken a large chunk out
of District 25,’" id.
Another non-racial factor "was the desire of Senator
19See Addendum to the Brief (map); J.A. 406 (map).
^The northern segment of District 30 is 24% African-American. See
J.A. 335 (weighted average for segments 3 and 4).
21Lawson Ex. 22 11 3; Lawson Ex. 25 HI 6-7.
“The district court cited the testimony of Dr. Richard Murray, a local
political scientist, that "various factors influenced the Legislature in
designing Districts 18 and 29: a clear commitment to improve the
representational opportunities for Hispanics; the personal ambitions of
certain members of the Harris County delegation; protection of
incumbents; party politics; class interests; preservation of the 18th as an
African-American majority seat; and keeping certain neighborhoods
together." TX J.S. 47a.
10
Gene Green23 to draw a Congressional district in which he
could run, namely one which included as much of his Senate
district as possible," id. State Representative Roman
Martinez, who aspired to run for Congress from the same
area, proposed a compact plan in which a new majority-
Hispanic district would overlap substantially with his House
District. Id. at 36a-37a. This plan was rejected because it
did not do enough to accommodate Senator Green’s
interests. The court below found that "the borders of
District 29 became increasingly distended as [Rep. Martinez]
and Senator Green fought to place their state constituents
within the new district." Id. at 66a; see also id. at 38a-39a.
It bears repeating that if population was taken out of
a proposed district to protect incumbents, or for other non-
racial reasons, new population had to be found to meet
population equality requirements; it is obvious that
incumbents and aspiring state legislators would want those
new voters to have characteristics as similar as possible to
those of the voters taken out of the district as initially
proposed.
C. The Character of the Resulting Districts
Although the shape of Congressional Districts 18, 29
and 30 is more irregular than alternatives earlier suggested
by minority legislators, the areas and voters included within
each of the districts as finally configured share significant
economic, social and political interests. To begin with, each
district is located within a single metropolitan area.
The core residential areas that comprise District 18,
in Houston, have remained unchanged since Barbara Jordan
was elected in 1971. Lawson Ex. 16 H 7. In shaping the
district after the 1990 census, the Legislature added
“ Senator, now Congressman, Green is white; Rep. Martinez is
Hispanic.
11
communities to which the children of existing residents of
the core areas had migrated. J.A. 261 (testimony of Paul
Colbert). Residents of the migration areas have ties, such
as church membership and Sunday worship, with the
downtown neighborhoods, and all residents in current
District 18 are "part of the same media markets, including
media directed toward African Americans." Lawson Ex. 13
H 17 (statement of Councilwoman Sheila Jackson Lee); see
also Lawson Ex. 12 H 9 (statement of Rev. William Lawson).
Non-minority neighborhoods traditionally in the District,
such as Montrose, which indicated a desire to remain in it,
were retained. See J.A. 397.
Local institutions affect the elected leaders’ ties to
the people and communities in District 18. For example,
one witness noted: "Texas Southern University (TSU), a
historically majority-black university with a substantial white
student population, is located in District 18. Our
Congressman, Craig Washington, our State Representative,
A1 Edwards, and our City Councilman, A1 Calloway, all went
to TSU. The late Congressman Mickey Leland also went to
TSU." Lawson Ex. 18 11 8 (statement of Deloyd T. Parker).
Congressional nominee Sheila Jackson Lee24 explained that
because District 18 is wholly within Harris County, "[tjhese
areas share the same City and County representatives" and
"[i]f a District 18 constituent were to bring a local problem
to my attention — whether that individual is black, white,
Hispanic, or Asian; whether that individual lives in the
north, south, east or west of the district — I would know
which local representative could best address that problem,
so that the representative and I could coordinate our efforts
to work together on the issue." Lawson Ex. 13 H 10.
Similarly, the residents of District 29 in Houston have
common demographic and economic characteristics. Because
24At the time of trial, Councilmember Lee was the Democratic
nominee in District 18.
12
it is the least wealthy of Texas’ Congressional districts, "there
is definitely a community of interest." J.A. 477 (Martinez
Dep.). The same Spanish language media serves the
community throughout District 29. J.A. 396 U 14. Both
Districts 18 and 29 provide for ease of transportation and
communication among their residents, as Dr. Paul Geisel, an
expert demographer, testified: "Both of these districts
are . . . historic political wards of [Houston]. . . . [Districts
18 and 29 are small as congressional districts. It is possible
to visit all parts of either district in any direction in less than
1 hour." J.A. 289. Dr. Richard Murray, a well-respected,
local political scientist, reported about Districts 18 and 29:
"Stable neighborhoods and communities of interest were
generally respected. . . . Stable innercity neighborhoods —
River Oaks, south Montrose, the East End, Third Ward,
Acres Home — were not divided." Lawson Ex. 26, at 17.25
The same characteristics are found in District 30 in
Dallas County. Other Texas Congressional districts that
include part of the Dallas metroplex also spread to rural
counties. District 30, however, is located totally within the
metropolitan area. Congresswoman Johnson testified about
the small African-American neighborhoods26 at the northern
“ Plaintiffs’ only expert witness testified: "I know Professor Murray
very well, and I respect him." TR V:75. Dr. Murray found:
The congressional district plan adopted by the Texas Legislature
created districts in Harris County [that] bring together people,
including minorities not well represented in the legislative
chambers even in the 1990’s, who share a number of
demographic and political behavioral characteristics."
Lawson Ex. 26, at 25. See also J.A. 395-96 111 11-12; Lawson Ex. 18 1 8.
“ Hamilton Park is the first subdivision that would sell lots to African
Americans on which to build new houses. Middle-income and upper-
income African Americans migrated from South Dallas first to Hamilton
Park, then to the McShan Road area and up the northern corridor to
Plano. Johnson Dep. 132-133.
13
end of District 30: "In terms of a community interest . . .
many of them are dentists and physicians who practice, have
offices in [South Dallas]. They go to church in that area.
They participate in social groups in the area. I live in
Southwest Dallas County and many of them are my personal
friends and social associates." Johnson Dep. 134. Residents
of both the northern and the southern parts of District 30
are members and active supporters of local organizations
such as the NAACP and Urban League. Id. at 142. Indeed,
both African-American and white communities in North
Dallas were included within District 30 because they did not
feel adequately represented in their prior, predominantly
Republican, Congressional districts. Johnson Dep. 132-133,
135; Lawson Ex. 22 H 3; Lawson Ex. 25 1111 6-7.
As with District 18 in Houston, migration patterns
were considered in determining areas to be included within
District 30. TX J.S. 28a-29a (citing PX 8B (transcript in
Terrazas v. Slagle)). In addition, communities of interests
reflected by support for regional, mass transportation were
considered. District 30 was designed in part based upon
voting pattern data from the local referenda on Dallas Area
Rapid Transit (DART) "to determine where there might be
more communities of interest, where there would be support
that would go beyond the color of the candidate." TX J.S.
34a (quoting Johnson Dep. 144). The DART light rail
system is not regularly shaped, yet, as explained by DART
Board member and former Texas House member Jesse
Oliver, "the DART light rail system appears to be the
skeleton of District 30 [and] DART bus routes appear to be
the veins and arteries of District 30." J.A. 402; see J.A. 406-
07 (DART maps).27
27As Mr. Oliver stated: "The close relationship between District 30
and the DART service area is a logical one. The light rail starter system
was designed to serve transit-dependent people; and those people are
usually low to moderate income workers, who most often are minorities.
District 30 includes this same community of people." J.A. 402 H 11.
14
D. Representation of District Constituencies
The court below made no finding that the
configuration of any of the three invalidated Congressional
districts had affected the adequacy of representation
afforded constituents, much less that there were any such
effects along racial lines. The evidence was to the contrary.
For example, white plaintiff Barbara Thomas was
"very, very favorably impressed" with nominee Sheila Jackson
Lee and expected that as a Congresswoman, Lee will reach
out to white voters and attempt to build racial bridges.
Thomas Dep. 74, 78. One white resident of District 18
described the responsiveness of Congressman Mickey Leland
and nominee Sheila Jackson Lee to all district residents. He
testified that whites in the district "feel comfortable with that
representation" and that there is widespread white support
for majority-minority districts such as District 18.28 Two
white District 30 residents described how their former
representatives had ignored them and how their
representation has improved since they had been placed in
District 30.29
Witnesses emphasized that these districts were not
segregated,30 but instead helped to overcome the effects of
“ Lawson Ex. 10 f 9 (statement of David Jones). Mr. Jones referred
to a recent survey conducted by Texas A&M University indicating that
six of ten whites supported majority-minority districts and only 23 percent
of whites were opposed. Id. 11 10.
^Lawson Ex. 22 11 3 (statement of Marc Stanley); Lawson Ex. 25 111!
6-7 (statement of Judith E. Zimmerman). See also Lawson Ex. 21 11
10(statement of Grady W. Smithey, Jr.).
“ ''Segregation" is an inappropriate description of the majority-
minority Districts at issue here. In Gomillion v. Lightfoot, 364 U.S. 339
(1960), the word "segregate" was used to describe allegations that "[t]he
essential inevitable effect of this redefinition of Tuskegee’s boundaries is
to remove from the city all save only four or five of its 400 voters, while
15
segregation.31 The only plaintiff from District 30, Pauline
not removing a single white voter or resident. The result of the Act is
to deprive the Negro petitioners discriminatorily of the benefits of
residence in Tuskegee, including inter alia, the right to vote in municipal
elections.1' Justice Frankfurter, known for his precision in the use of
language, said that if those allegations remained uncontradicted or
unqualified after trial, "the conclusion would be irresistible . . . that the
legislation is solely concerned with segregating . . . voters," id. at 341
(emphasis added).
Here, in contrast, District 18, 29 and 30 are the most integrated
districts in Texas’ 1991 districting plan, with all of the State’s other 27
districts having a higher percentage of a single race or ethnic group than
any of these three districts. In voting age population, District 18 is
47.1% black, 35.2% white and 13.7% Hispanic; District 29 is 55.4%
Hispanic, 9.8% black and 33.4% white; District 30 is 47.1% black, 36.1%
white and 15.1% Hispanic. As the results in District 29 indicate, there
is no bar to white candidates running or being elected. Texas has seven
Congressional districts that are more than 80% white. It is not accurate
to describe an integrated, minority opportunity district as "segregated,"
especially when heavily white districts are not labelled that way.
The court below also used the term "segregate" in an unusual
sense, to refer both to including minority voters into integrated minority
opportunity districts and to the placement of other minority voters into
majority-white districts. E.g. TX J.S. 68a. Plaintiffs’ expert was similarly
expansive in his definition of segregation. Dr. Weber first stated that
District 30 was not "a strong indication of segregation," because many
African Americans in the close vicinity were excluded. TR 111:110. He
later changed his testimony and said that District 30 was segregated, but
he was unable to say whether blacks were segregated into (or out of) the
District and he testified that whites were segregated into the District.
TR 111:139.
31White resident Judith Zimmerman explained: "Far from segregating
voters, the creation of a majority-minority district in Dallas has provided
an opportunity for a long overdue joining of historically divided forces.
Dallas is extremely polarized along racial lines, and this district is a
wonderful tool to help us pull together." Lawson Ex. 25 U 7. Dallas
businessman Albert Black stated: "I grew up in a segregated
neighborhood.. . . I do not understand how anyone could think a district
that brings together an African-American businessman from South Dallas
16
Orcutt, described the district forcefully: "It is integrated. Of
course it is, and you know it." Orcutt Dep. 110-11 (emphasis
added)."
Plaintiffs’ Claims
The nature of the claims asserted by plaintiffs in this
case are fundamentally different from other post-Shaw v.
Reno lawsuits, such as those involving Georgia and
Louisiana. Plaintiffs in this case do not seek a remedy that
will make these three majority-minority districts majority
white. Plaintiffs here do not contend that majority-non
white districts would not exist in Dallas or Harris County
except as a result of race-conscious redistricting. To the
contrary, plaintiffs readily conceded that what they regard as
"color-blind" redistricting would result in African-American
opportunity districts in both counties, and in a
predominantly Hispanic district in Harris County. Plaintiffs’
central trial court exhibit was their alternative districting
plan, deliberately drawn by plaintiffs’ expert without
consideration of race. Even under such a plan, plaintiffs
acknowledged that Districts 18, 29 and 30 would be majority-
non-white. This case thus presents the circumstance
described in Shaw, 113 S. Ct. at 2828, in which recognition
of existing communities would result in non-white districts.
The gravamen of plaintiffs’ claim concerns not
whether Districts 18, 29 and 30 should be majority-non-white,
but only what the particular contours of these districts
should be. Plaintiffs contend that under a race-neutral
districting process, the minority population should actually
have been higher in District 18 and about the same in
District 30. Only in District 29, which is currently
represented by a white incumbent, do plaintiffs advocate a
(like me) and an Anglo businessman from North Dallas (like Jerry
Johnson) to further economic development in the entire Dallas area
could be considered segregative." Lawson Ex. 1, at 16.
17
substantial increase in the proportion of whites.32
The District Court’s Ruling
The court below invalidated Districts 18, 29 and 30,
while upholding the constitutionality of 18 majority-white
and three majority-Hispanic districts,33 It subjected Districts
18, 29 and 30 to "strict scrutiny" because it said that they
were "racial gerrymanderjs]," TX J.S. 69a, defined as
districts intentionally created to be majority-minority, which
did not comport with "traditional" districting criteria, which
the court held must be "objective" and "ideal." Id. The
court specifically excluded protection of incumbents from
among "traditional districting" factors, because it is not an
“ Plaintiffs advocated combined-minority districts, proposing to put
more Hispanics into the African-American opportunity districts, and
more African-Americans into the Hispanic districts, a legal argument
discussed in note 80, below. The following chart shows the white and
minority population of Districts 18, 29 and 30 in the current plan and in
plaintiffs’ proposed alternative plan:
Black and Hispanic White
District 18
Current Plan 370,913
Plaintiffs’ Plan 411,915
District 29
State’s Plan 397,459
Plaintiffs’ Plan 311,096
District 30
State’s Plan 375,233
Plaintiffs’ Plan 364,467
(65.5%) 177,036 (31.3%)
(72.7%) 142,668 (25.2%)
(70.2%) 157,461 (31.4%)
(54.9%) 233,660 (41.3%)
(66.3%) 177,661 (31.4%)
(64.4%) 191,519 (33.8%)
The net overall effect of plaintiffs’ plan for these three districts of more
than 1.5 million residents is to increase white population by 55,689,
mostly in District 29, which so far has elected the candidate of choice of
white, and not Hispanic, voters, TR 11:18, J.A. 181 H 38.
“ Plaintiffs dropped their challenge to the remaining six districts,
including three majority-Hispanic districts.
18
"ideal" criterion, id. at 56a & n.43, and because "many of
the voters being fought over [by the incumbents] were
African American," id. at 64a.
Applying strict scrutiny, the court did not address
whether Texas had a compelling justification for creating
minority opportunity districts in the Houston and Dallas
areas because it concluded that the districts were not
"narrowly tailored." Id. at 69a-74a. The court held that in
creating majority-minority districts, the State must maximize
regularity of district shape,34 even though no such rule exists
for majority-white districts. The court found "dispositive"
the "fact that alternative plans for Districts 18, 29 and 30
were all much more geographically and otherwise logical," id.
at 73a.
SUMMARY OF ARGUMENT
Shaw v. Reno, 113 S. Ct. 2816 (1993), and Miller v.
Johnson, 115 S. Ct. 2475 (1995), hold that when "race
predominates in the redistricting process," id. at 2488, a
plaintiff who has standing may require a State to justify its
districting plan by demonstrating that there was a compelling
State interest for taking race into account and that the plan
was narrowly tailored to achieve the compelling goal. On
the other hand, these cases reaffirm that, absent proof that
racial considerations predominated the districting process,
there is no colorable claim of a Fourteenth Amendment
violation even though a particular electoral district has a
majority-minority population. See Miller, 115 S. Ct. at 2490.
The factual findings below — if not the lower court’s
^"Because a Shaw claim embraces the district’s appearance as well as
its racial construction, narrow tailoring must take both these elements
into account. That is, to be narrowly tailored, a district must have the
least possible amount o f irregularity in shape, making allowances for
traditional districting criteria." TX J.S. 72a (footnote omitted and
emphasis added).
19
sweeping characterizations of the case -- and abundant
evidence in the record demonstrate that race was not "the
predominant factor motivating the legislature’s decision to
place a significant number of voters within or without"
Districts 18, 29 and 30. Miller, 115 S. Ct. at 2481.
Differences between the districts as enacted and those which
plaintiffs conceded would be appropriate, see TX J.S. 48a,
were attributable to reasons that have nothing to do with
racial motive. Because this case involves the interplay of
numerous political factors (primarily Texas’ tradition of
partisanship and incumbent protection) in the districting
process, and the Legislature’s simultaneous awareness of the
State’s racial demography, of its obligations under § 5 of the
Voting Rights Act, and of the need to avoid fragmentation
of concentrations of minority voters that would subject it to
potential liability under § 2 of the Act, the court below erred
in subjecting the challenged districts to "strict scrutiny" as
though race predominated.
The Court below also erred in its belief that the only
redistricting principles which could be considered were those
listed in Shaw, 113 S. Ct. at 2827. It specifically rejected
incumbent protection, TX J.S. 56a, as a traditional
redistricting criterion as well as other non-racial
considerations that actually influenced the 1991 Texas
redistricting. Moreover, the three districts invalidated
below have contiguity in the same way as other challenged
districts found legal by the trial court, and they likewise
reflect as much respect for political subdivisions as those
other districts.
Even if the Court were to determine that "strict
scrutiny" is the appropriate analytic standard, the judgment
below must still be reversed. The State had an extremely
strong basis in evidence for concluding that a compelling
interest supported the creation of these minority opportunity
districts in light of the population concentrations, polarized
voting, the history of discrimination and, with respect to
20
District 18, the requirement of non-retrogression. The court
below erred in holding that a majority-minority district "must
have the least possible amount of irregularity of shape,
making allowances for traditional districting criteria," TX J.S.
72a, which did not include incumbency protection. This is
a clear misreading of this Court’s language in Shaw stating
that there would be a violation of the Fourteenth
Amendment if "a state concentrated dispersed minority
population in a single district by disregarding traditional
principles such as compactness, contiguity, and respect for
political subdivisions," 113 S. Ct. at 2827. There is nothing
in the Shaw opinion which says or indicates that the three
principles mentioned are exclusive. And the fact that "Shaw
nowhere refers to incumbent protection as a traditional
districting criterion," TX J.S. 56a, does not mean that a court
in a democratic society can shut its eyes to such political
reality.
Plaintiffs’ complaint should have been dismissed
because they failed to introduce evidence sufficient to
demonstrate their standing.35 Although they are residents of
Districts 18, 29 and 30, none of the plaintiffs presented
evidence that they suffered the harms discussed in Shaw, 113
S. Ct. at 2826.
ARGUMENT
I . The 1991 Plan, Including Districts 18, 29 And 30,
Should Have Been Sustained Without Strict
Scrutiny
This is not a case like Miller v. Johnson, in which a
legislature enacted several redistricting plans based on
multiple criteria — each of which was criticized for not
including enough minority districts -- and thereafter adopted
a plan in which all factors "that could realistically be
35See United States v. Hays, 115 S. Ct. 2431, 2435 (1995)(dismissal
proper if evidence sufficient to support standing not adduced at trial).
21
subordinated to racial tinkering in fact suffered that fate,"
115 S. Ct. at 2475. Here, the Legislature started with an
undisputed awareness of plans that would produce compact,
contiguous, minority-opportunity Congressional districts in
urban areas where large concentrations of minority voters
resided. The legislature ultimately adopted a plan that
included minority opportunity districts in those metropolitan
areas, but the districts’ shape -- while remaining contiguous,
having as much respect for political subdivisions as others
created under the plan, and including equal population —
became somewhat less regular and compact solely as a result
of complex political compromising designed to protect
incumbents, achieve partisan advantage and accomplish
other non-racial goals.
Because of this very different fact pattern, the
prerequisite determination requiring the application of "strict
scrutiny" announced in Miller: that "race predom inate^] in
the redistricting process," 115 S. Ct. at 2488, could not be
justifiably made in this case; and for this reason, the court
below should have sustained the legislative districts without
undertaking a "strict scrutiny" analysis.
A. Race Did Not Predominate Either In The
State Of Texas’ Decision To Create Majority-
Minority Districts Or In The Ultimate
Configuration Of Those Districts.
Miller held that the predominance o f race in the
districting process, not district shape, is the touchstone for
application of "strict scrutiny." 115 S. Ct. at 2490.
To make this showing ["that race was the
predominant factor motivating the legislature’s
decision to place a significant number of voters
within or without a particular district"], a plaintiff
must prove that the legislature subordinated
traditional race-neutral districting principles,
including but not limited to compactness, contiguity,
22
respect for political subdivisions or communities
defined by actual shared interests, to racial
considerations.
115 S. Ct. at 2481. The Court also recognized: "[A] State
is free to recognize communities that have a particular racial
makeup, provided its action is directed toward some
common thread of relevant interests. ‘[W]hen members of
a racial group live together in one community, a
reapportionment plan that concentrates members of the
group in one district and excludes them from others may
reflect wholly legitimate purposes.’" Id. at 2490 (quoting
Shaw, 113 S. Ct. 2816, 2826).36
Further insight into the applicable standards is
provided by the Court’s action on the same day that Miller
was announced, summarily affirming the lower federal court
ruling that upheld California’s Congressional and State
legislative districting plans, DeWitt v. Wilson, 115 S. Ct. 2637
(1995). The creation of majority-minority districts was a
strong motivating factor in the DeWitt districting plan, which
was proposed by a panel of Masters and adopted by the
California Supreme Court. See Wilson v. Eu, 4 Cal. Rptr. 2d
379 (1992).37 As found by the Supreme Court of California,
36Miller directed courts "to exercise extraordinary caution" and
recognized "the intrusive potential of judicial intervention into the
legislative realm." 115 S. Ct. at 2488. Even to invoke strict scrutiny,
plaintiffs must show that race "predominated" in the districting process
and other considerations were "subordinated," id. at 2488. Justice
O’Connor’s concurring opinion explained: "[t]he threshold standard the
Court adopts . . . [is] a demanding one" and "[application of the Court’s
standard does not throw into doubt the vast majority of the Nation’s 435
Congressional districts," id. at 2497.
37The Masters "devoted intense efforts to comply with the federal
Voting Rights Act." 4 Cal. Rptr. 2d at 383. They explicitly gave "federal
Voting Rights Act requirements . . . the highest possible consideration,"
id. at 397. Because the Masters had no knowledge of whether the
second and third preconditions of Thornburg v. Gingles, 478 U.S. at 50
23
the Masters engaged in "successful efforts to maximize the
actual and potential voting strength of all geographically
compact minority groups of significant voting age
population," id. at 393 (emphasis added). Despite the
Masters’ deliberate creation of minority opportunity districts
in all areas of the State where the minority population was
sufficiently large and geographically compact to constitute a
majority in a single-member district, the three-judge court
found that strict scrutiny was not required because "the
Masters’ Report sought to balance the many traditional
redistricting principles, including the requirements o f the
Voting Rights Act," 856 F. Supp. 1409, 1413 (E.D. Calif.
1992) (emphasis added).38
When these principles are applied to the facts found
by the district court, it is clear that race was not "the
predominant" motive within the meaning of Miller and,
hence, that strict scrutiny of the Texas districting plan was
not required. Like the Masters in DeWitt, Texas created
majority-Hispanic or majority-African-American districts only
where either the Hispanic or African-American population
was sufficiently large and compact to satisfy the first
(1986), were satisfied in any regions of California, they chose to minimize
the risk of a successful § 2 claim by creating a majority-minority districts
wherever the first Gingles prong was met. 4 Cal. Rptr. 2d 379, 383, 397,
399 (Masters did not have evidence of voting patterns and thus chose to
"draw boundaries that will withstand section 2 challenges under any
foreseeable combination of factual circumstances and legal rulings.").
Indeed, the Masters went further and where a compact minority
population was not large enough to constitute a majority in a district, the
panel nonetheless kept the minority population together in an effort to
promote minority influence. Id. at 383-384.
38Although the court alternatively found that the plan would survive
strict scrutiny, 856 F. Supp. at 1414, there was no evidence of racially
polarized voting, thus suggesting that this Court’s summary affirmance
was based on the conclusion that strict scrutiny was not required.
24
precondition of Gingles.39 The Legislature decided to make
Districts 18, 29 and 30 majority-minority only after it was
clear that such majority-minority districts could be created
in conformity with compactness and other "ideal" criteria.
Compactness was not subordinated to race or ethnicity in
determining the number of majority-minority districts. The
State did not maximize the number of majority-minority
districts.40 In fact, it instead rejected proposals that would
have created additional minority opportunity districts.41
The Masters in DeWitt identified reasonably compact
majority-minority districts and then built the rest of the
State’s plan around those districts. If Texas had adopted the
idealized, most compact versions of Districts 18, 29 and 30,
strict scrutiny would not be triggered. Instead of rigidly
adopting and building around the idealized versions, Texas
in the final borders of its minority opportunity districts
accommodated non-racial goals, such as incumbent
protection, State legislator aspirations, placement of non
population areas like airports and industry, placement of
incumbents’ residents, funding sources and friends, and
requests from voters of all race and ethnic groups and
39478 U.S. at 50. The Legislature was thoroughly advised about the
standards applied under § 2 of the Voting Rights Act through the "gray
books" prepared by and presentations given by knowledgeable Texas
Legislative Counsel attorneys. See TX J.S. 17a.
i0E.g., TR 111:21 (plaintiffs’ expert, Dr. Weber, testified: "Texas 1991
redistricting plan is not designed to maximize black voting strength").
41The decisive role of compactness in the decisions when to create
majority-minority districts and the absence of a "race for its own sake"
motive is demonstrated by the State’s rejection of proposals for
additional majority-minority districts. The Legislature rejected proposals
for majority-minority districts that would have joined together dispersed
minority populations with no apparent communities of interest. For
example, State Representative Jerald Larry proposed a third majority-
African-American district that would have traversed parts of 15 counties.
J.A. 305-06; Lawson Ex. 11 H 6. See also J.A. 253, 397.
25
religions. Such accomodations are characteristic of the
democratic society in which we live.
The evidence is overwhelming that the predominant,
overriding motive in moving from regularly shaped to
irregularly shaped versions of the opportunity districts was
not race, but incumbent protection. As plaintiffs’ main lay
witness, Representative Grusendorf, conceded, "the odd
configuration of District 30 was the result of protecting Frost
and Bryant." TX J.S. 32a.
Adjusting the borders of a compact African-American
or Hispanic district to better serve non-racial goals does not
convert an appropriate and "wholly legitimate" consideration
of race, Miller, 115 S. Ct. at 2490, 2500 (quoting Shaw, 113
S. Ct. at 2826), into "the predominant" use of race to
determine the ultimate shape of the district. Rather than
increasing the degree of racial motive, Texas’ choice of
irregular over regularly shaped versions of the minority
opportunity districts decreased the role of race and ethnicity,
by bringing additional influences into the decision.
B. Districts 18, 29 And 30 Encompass
Communities That Have Actual Shared
Interests
In describing the characteristics of districting plans
that need not be tested under a strict scrutiny standard, the
Court in Miller distinguished legislative recognition of
"communities that have a particular racial makeup [as well
as] . . . some common thread of relevant interests" from a
legislative assumption that persons of the same race will
prefer the same candidates at the polls, id. at 2490. The
extensive record in this case amply demonstrates that Texas
Districts 18, 29 and 30 all bring together "members of a
racial group [who] live together in one community," id., and
who have deep, common bonds.
The extensive evidence of voting patterns presented
by experts for both the plaintiffs and the State leaves no
26
doubt that the State was not relying on the unproven
assumption of political cohesion among African Americans
in Houston and Dallas and among Hispanics in Houston.
The experts agreed and the evidence was overwhelming that
African Americans in the Houston area in fact support the
same political candidates, that African Americans in the
Dallas area in fact vote cohesively as a group and that
Hispanics in the Houston area in fact vote cohesively with
each other, but not with African Americans. (This data is
discussed in more detail in Point II. A.2.b., below.) Because,
as described above (see supra pp. 11-14), these districts were
designed to recognize known communities of common
interests, and were not based on stereotypes, they are not
subject to strict scrutiny.
C. The Final Configuration Of The Districts
Resulted From A Constitutionally Permitted
Political Gerrymander, Not From An
Improper Racial Gerrymander
The essence of this case is political "gerrymandering,"
not racial "gerrymandering." The decision to protect all
sitting incumbents and to make the three new districts
Democratic had strong partisan implications. In a State
where roughly half the votes go to Republicans, the 1991
districting plan designed 73% (22 of 30) of the
Congressional districts to elect Democrats.42 This feat
42J.A. 346. See also U.S. Ex. 1000 (partisan index for Texas 1991
Congressional districts). The Democratic districts had majorities of
Democratic voters of at least 54.8%, while the Republican districts had
Republican majorities of at least 60.6%. Jd. One of the districts (No.
23) drawn with a Democratic majority in 1991 elected a Republican in
1992, probably because the incumbent was under investigation and
subsequently was indicted. The Republicans captured additional seats in
1994, but the 1994 losses were probably facilitated by the partisan
gerrymander, i.e., because the Legislature had spread Democratic voters
thinly in the effort to maximize the number of Democratic-controlled
districts, small shifts in voter choice toward the Republican direction
27
naturally required creative line drawing, but the effort was
a far-flung search for Democrats, not minorities.
The fact that Texas had engaged in a political, and
not racial, gerrymander was well known at the time. A
Bandemer-type43 lawsuit was filed by Republicans even
before the final plan was adopted.44 Republicans (except
incumbents happy with their high Republican percentages)
uniformly denounced the plan as D em ocratic
gerrymandering.45 No one claimed racial gerrymandering in
favor of African-American or Hispanic voters. Instead, the
opposite claim was made, that African-American and
Hispanic voters were disadvantaged in the quest to protect
all Democratic incumbents (most of whom happened to be
white).46
The transformation of Rep. Grusendorf, plaintiffs’
main trial witness, is illustrative. In 1991, Rep. Grusendorf
found the district lines "very logical and rational, . . .
dissecting communities very creatively in order to pack
Republicans and maximize Democratic representation." He
stated: "This plan was drawn with only one thing in mind,
and that is to protect Democratic incumbents, p e r i o d J.A.
376, 380 (Texas House Floor Debate, Aug. 21, 1991)
(emphasis added). Only after claims of partisan
gerrymandering lost in federal court47 did Rep. Grusendorf
resulted in the loss of seats.
i3Davis v. Bandemer, 478 U.S. 109 (1986).
i4See Terrazas v. Slagle, 821 F. Supp. 1162, 1172 (W.D. Tex. 1993).
45E.g., J.A. 346, 351.
4<sTX J.S. 18a; U.S. Ex. 1005 (Republican claims of minority vote
dilution).
A1Terrazas, supra note 44.
28
discover the racial gerrymandering assertion, while still
complaining more about the partisan nature of the plan.48
It is no mere coincidence that all plaintiffs in this
case are Republicans.49 Plaintiffs presented at trial a plan
that kept the same number of majority-minority districts, but
dramatically altered the Democrat-Republican balance, from
22/8 to 15/15. TR IV:175-177. Plaintiffs’ expert admitted
that plaintiffs’ alternative plan sought "to provide a fairer
distribution of the seats based upon what we know about
partisan divisions in the State." TR V:24 (emphasis added).
With large, multi-ethnic, minority populations, it was
inevitable that minority voters, like all other voters, would
get caught up in the partisan engineering. The State’s
constitutionally legitimate effort not to fragment large,
compact minority populations was carried out in the
overarching context of its political gerrymander, with the
result that the boundaries of both minority and non-minority
districts, not only in Houston and Dallas, but throughout the
State, were made more irregular.
The irregularity was exacerbated where the State was
inserting new Democratic districts into metropolitan areas
with a "shortfall" of Democratic voters.50 But majority-
minority districts were treated no differently than majority-
white districts in the distortion of their shapes to produce
Democratic majorities in all Democratic districts.
48TR 1:99 ("the problem in congressional districting was not in the
Black district, but . . . the feeding frenzy of white Democrats"), 100-101
("fairness" and Voting Rights Act "required majority-minority districts
here"), 116 (Congressman Frost needed "Black voters to get re-elected"
"[bjecause they vote Democratic").
™See J.A. 390 H11 16, 17.
50See U.S. Ex. 1041 ("there just aren’t alot of spare Democratic voters
in and around Dallas").
29
Another way minority voters were caught up in the
partisan gerrymandering is the happenstance that in Texas
African-American, and to a lesser extent Hispanic, voters are
Democrats. In the quest to find Democrats, African
Americans and Hispanics were desirable, but so were white
Democrats, as demonstrated by the intense fight between
Eddie Bernice Johnson and Martin Frost over white voters
in Grand Prairie. Such consciousness of race and ethnicity
in the quest for Democrats is not constitutionally suspect, as
discussed in Point D.2., below. Unless the Court concludes
that Davis v, Bandemer,51 should be overruled, a result that
appellants do not advocate, there is no constitutional basis
for new, anti-partisan gerrymandering rules, applicable only
to majority-minority districts.
D. The Lower Court’s Decision To Subject
Districts 18, 29 And 30 To Strict Scrutiny Is
Based On Serious Errors Of Law
1. The District Court erred in rejecting incumbent
protection as a "traditional" districting criterion.
Miller and DeWitt establish that strict scrutiny applies
only when race was "the predominant" motive for a
districting plan and "race for its own sake . . . was the
legislature’s dominant and controlling rationale." 115 S. Ct.
at 2488, 2486. It follows that where majority-minority
districts can be created without displacing the State’s other
districting criteria, as in DeWitt, race is not "predominant."
It also follows that where any conflicts between the goal of
creating majority-minority districts and other districting
51See also Gaffney v. Cummings, 412 U.S. 735, 752, n.18 (1973)
(partisan gerrymandering does not constitute a Fourteenth Amendment
violation, even when "the shapes of the districts would not have been so
‘indecent’ had the Board not attempted to “wiggle and joggle’ border
lines to pockets of each party’s strength").
30
objectives resulted in compromises, those other districting
factors were not "subordinated," nor was race "the dominant
and controlling" factor, id.
The centrality of incumbent protection, as described
in the district court’s opinion, makes clear that race and
ethnicity could not have been, unless one misuses the
adjective, the "predominant"52 factor motivating the
Legislature’s 1991 action. The district court’s opinion
describes numerous instances in which the goal of creating
majority-minority districts conflicted with the goal of
incumbent protection, and the minority opportunity goal did
not predominate.
For example, although the district court characterized
Senator Johnson as motivated solely by a desire to create a
majority-African-American district, the court recognized that
the plan she initially proposed "drew much opposition from
incumbents and was quickly abandoned." TX J.S. 31a n.22.
Rather than constituting evidence that the Legislature’s final
plan for District 30 is an unconstitutional racial
gerrymander, this finding is fatal to the claim that race and
ethnicity predominated. In contrast to Senator Johnson’s
proposal, the State’s plan came about only after intense
political battles were fought, block by block, voter by voter,
and the interests of minority voters were compromised to
accommodate incumbent Congressmen.53
The district court did not deny that incumbent
protection predominated, but instead reasoned: "Shaw
nowhere refers to incumbent protection as a traditional
districting criterion." TX J.S. 56a. Excising incumbent
52The definition of predominant is: "holding an ascendancy" or
"having superior strength, influence, authority or position." Webster’s
Third New International Dictionary 1786 (1981).
S3See J.A. 388 (Senator Johnson had to accommodate incumbents to
get plan passed by Legislature).
31
protection simply because it is not explicitly listed in Shaw
is an error of law. Miller indicates that "traditional race-
neutral districting principles . . . includ[e] but [are] not
limited to" compactness and other factors on the illustrative
list. 115 S. Ct. at 2488 (emphasis added). Miller explicitly
held that where "these or other race-neutral considerations"
are the basis for redistricting legislation and are not
subordinated to race and ethnicity, strict scrutiny is not
required. Id. (emphasis added). Thus, the district court
misconstrued the law as expressed by this Court in Shaw and
Miller.
There are sound policy reasons, among them
federalism, for this Court’s failure to include an exclusive list
of non-racial districting criteria in its opinions. In Miller, the
Court emphasized that the Constitution demands deference
to a State’s own definition of its districting interests.54 The
district court disregarded this Court’s recognition of
incumbent protection and political consequences as valid
districting factors,55 because it said that Texas was too
54115 S. Ct. at 2487 (quoting Chapman v. Meier. 420 U.S. 1, 27
(1975))("Electonil districting is a most difficult subject for legislatures,
and so the States must have discretion to exercise the political judgment
necessary to balance competing interests"; "[fjederal court review of
districting legislation represents a serious intrusion on the most vital of
local functions"; "reapportionment is primarily the duty and responsibility
of the State").
55The Court has consistently emphasized that protection of
incumbents is a legitimate State districting principle which, in the exercise
of State discretion, may be given a higher priority than compactness.
White v. Weiser, 412 U.S. 783, 791 (1973) (State could legitimately seek
the benefits of "maintaining existing relationships between incumbent
congressmen and their constituents" and preserving congressional
seniority); id. at 794 n.15; Karcher v. Daggett, 462 U.S. 725
(1983)(avoidance of contests between congressional incumbents and
"preserving the cores of prior districts" are legitimate State districting
goals). The Court also has stressed: "Politics and political considerations
are inseparable from districting and apportionment. . . The reality is that
32
aggressive in pursuit of these goals. TX J.S. 54a. But
nothing in the Constitution or precedent suggests that a
legitimate State goal is transformed into an illegitimate goal,
simply because the State aggressively pursues it. Rather, the
aggressiveness with which the State protected its incumbents
merely reflects the high value Texas placed on this goal and
the dominance of this influence in district construction.
The district court similarly concluded that only
"objective districting factors" or "ideal districting criteria"
may rebut a Shaw v. Reno claim. Id. at 53a, 56a. Miller
indicates that this also was error because it would elevate a
federal court’s policy choices above a State’s and is unrelated
to the central inquiry into predominant legislative motive.
The constitutional question is whether the State gave weight
to its own self-defined interests and did not subordinate
those interests to a racial motive.
2. The district court erred as a matter o f law in
refusing to recognize the goal o f incumbent
protection as a non-racial influence on district
shape.
The second reason given by the court below for
rejection of incumbent protection is that "racial
gerrymandering was an essential part of incumbency
protection," id. at 65a. The court reached this conclusion
because "many of the voters being fought over were African
American"56 and some "African-American voters were
deliberately fenced out of District 30 and placed in other
districting inevitably has and is intended to have substantial political
consequences." Gaffney v. Cummings, 412 U.S. at 753.
56The court’s language necessarily recognizes that many o f the voters
fought over were white and others were Hispanic. The common
characteristic of all these voters was not race, but Democratic party
affiliation.
33
districts" to protect white incumbents. Id. at 65a, 66a.57
The district court’s conclusion that incumbent
protection was part of the "essence" of the racial
gerrymander is based not on the placement of minority
voters into majority-minority districts, but on the placement
of minority voters into majority-white districts, an
integrative, not segregative action. This conclusion is legal
error because it improperly treats as racial motive mere race-
consciousness and partisan correlation with race.
The court below recognized that white Democrats
wanted minority voters not because of "race for its own
sake," Miller, 115 S. Ct. at 2486, but because they voted
Democratic. See, e.g., TX J.S. 32a ('Frost and Bryant were
not concerned about the race o f these voters. They just
wanted to hold onto enough Democrats to assure re-
election.") (quoting testimony of Ted Lyon, former member
of Texas House and Senate, J.A. 388).5S Yet, ultimately the
57The court made the same finding as to Harris County: "Incumbent
Democrats were fencing minorities into their districts or into the new
majority-minority districts, while those same minorities were effectively
being removed from Republican incumbents’ districts." Id. at 68a.
3SThe district court found "[qjuite telling" a letter from then-Senator
Johnson to the Department of Justice, "explain[ing] why African-
American voters were so attractive to incumbents fighting over district
boundaries," TX J,S. 33a. The letter states:
[Approximately 97% of the total votes cast by Blacks in the
Dallas/Fort Worth metroplex area are cast in the Democratic
primary. Because o f the consistency o f this voting pattern,
Democratic incumbents generally seek to include as many
Blacks as possible into their respective districts.
Id. (quoting PX 6E6) (emphasis added). Plaintiffs’ main witness, Rep.
Grusendorf, testified that the reason Frost wanted black voters in his
district was because they vote Democratic. TR 1:124 (emphasis added),
and Dr. Weber testified that certain white Democrats desired African-
American voters because "those would be reliable Democratic voters,"
TR 111:125. Other legislative history confirms this partisan motive. Rep.
34
court rejected the State’s argument that incumbent
protection was a partisan matter, reasoning:
As it happens, however, many of the voters being
fought over were African-American. The State
cannot have it both ways. It cannot say that African-
American voters are African-American when they are
moved into District 30, but they are merely
"Democratic" when they are deliberately placed in a
contiguous district for the purpose of bolstering the
re-election chances of other Democrats.
TX J.S. 64a (footnote omitted).
Miller explicitly held that consciousness of the race of
voters in constructing Congressional districts does not violate
the Equal Protection Clause, explaining: "Redistricting
legislatures will, for example, almost always be aware of
racial demographics; but it does not follow that race
predominates . . . . ‘[Discriminatory purpose’. . . implies
that the decisionmaker . . . selected or reaffirmed a
particular course of action at least in part ‘because of,’ not
merely ‘in spite of,’ its [racial] effects." 115 S. Ct. at 2488
(emphasis added)(quoting Personnel Administrator v. Feeney,
442 U.S. 256, 279 (1979)). When stripped of rhetoric, the
district court’s view that race was an "essential part" of
incumbent protection is revealed to be nothing more than
incidental consciousness of the race and ethnicity of persons
who vote for the Democratic party. Such incidental
consciousness of race and ethnicity is not unconstitutional
under Miller and therefore is not a reason for ignoring the
race-neutral goal of incumbent protection as a predominant,
Hill objected to the "snaking out" of District 30, noting that "certain black
precincts that were contiguous to the central and core portion of the City
of Dallas" were not included in District 30 but "[wjhere they are included
is in Democratic Congressman Martin Frost’s district, and obviously they
are there . . . because those are democrat voters." PX 24, 28-31 (emphasis
added).
35
traditional, influence on the construction of Districts 18, 29
and 30. The goal of incumbent protection in Texas was
race-neutral, applied to all incumbents and aspiring
legislators, regardless of race and ethnicity. As such, it
deserved recognition under Miller as a "traditional race-
neutral districting principle]", 115 S. Ct. at 2481, that was
not subordinated to race, and accordingly, Districts 18, 29
and 30 should not have been subjected to strict scrutiny.
3. The district court applied the wrong test and
erred in ignoring the irregular shapes o f Texas’
majority-white Congressional districts.
The court below articulated its threshold test for
strict scrutiny: "the plaintiffs’ burden of production extends
solely to the race-consciousness of the districts combined
with the disregard of traditional districting criteria." TX J.S.
70a. It held that once plaintiffs meet that burden of
producing evidence that would support a claim of racial
gerrymander, the State’s only defense is to meet the
requirements of "strict scrutiny" (compelling State interest
and narrow tailoring). Id. at 60a. Instead of carefully
analyzing all of the motives and influences that resulted in
Districts 18, 29 and 30, the arbitrary test adopted by the
district court, and the erroneous limit on the non-racial
districting criteria that the State may legitimately take into
account, eviscerated the opportunity afforded the State by
this Court’s decision in Miller to defeat such a claim by
showing that non-racial considerations were not
"subordinated to race" in the districting process, 115 S. Ct.
at 2481.
Under the district court’s test, districts are subjected
to strict scrutiny regardless of whether racial considerations
predominated, if race played any role in creation of a
majority-minority district and the shape of that district is
irregular. The court explained its reasoning: "we disagree
strongly that the misshapen boundaries of a racially
36
constructed district are merely prima facie evidence of a
constitutional violation and not part of its essence." TX J.S.
53a n. 40.
Miller explicitly rejects this reasoning, holding that
shape is not part of the "essence" of the Equal Protection
claim. Instead, under Miller, a district’s shape
is relevant not because bizarreness is a necessary
element of the constitutional wrong or a threshold
requirement of proof, but because it may be
persuasive circumstantial evidence that race for its
own sake, and not other districting principles, was
the legislature’s dominant and controlling rationale in
drawing its district lines.
115 S. Ct. at 2486. The court below erred in relying on
shape as part of the "essence" of the claim.
The court also erred in ignoring the highly irregular
shapes of majority-white Congressional districts in reaching
its conclusion that Districts 18, 29 and 30 were
"unexplainable in terms other than race," TX J.S. 65a, 69a.
It focused its analysis upon only these minority opportunity
districts despite its description of the overall 1991 plan as "a
crazy-quilt of districts that more closely resembles a
Modigliani painting than the work of public-spirited
representatives," id. at 8a. Although plaintiffs challenged as
"bizarre" 20 of the State’s 30 districts,59 the district court
upheld the constitutionality of 18 majority-white districts and
three majority-minority districts. It follows that when both
majority-minority and majority-white districts across a State
exhibit similar irregularity of configuration, shape provides
5T he lower court found many Texas majority-white districts
"disfigured" and "equally ‘untraditional’" as the districts it invalidated.
TX J.S. 9a, 65a. The plaintiffs identified 23 of Texas’ current
Congressional districts as equally or more bizarre than Districts 18, 29 or
30. Thomas Dep. 49-52; Vera Dep. 36-44; Blum Dep. 65-73; Chen Dep.
65-77; Powers Dep. 55-58.
37
no probative indication of racial motive.
By ignoring the highly irregular, majority-white
districts, the district court subjected efforts to recognize
minority communities of interest to a higher constitutional
standard than efforts to recognize other communities of
interest. This is contrary to Justice O’Connor’s conclusion,
concurring in Miller, that "certainly the [appropriate
constitutional] standard does not treat efforts to create
majority-minority districts less favorably than similar efforts
on behalf of other groups." 115 S. Ct. at 2497 (emphasis in
original). Although Justice O ’Connor’s reference was to
districts drawn to recognize ethnic communities of interest,
it is equally applicable to Texas’ efforts to recognize partisan
communities of interest in constructing its districts.
Redistricting always involves "competing claims of political,
religious, ethnic, racial, occupational, and socioeconomic
groups," Bandemer, 478 U.S. at 147 (O’Connor, J.,
concurring)(emphasis added), and the Fourteenth
Amendment cannot possibly mean that African Americans
and Hispanics seeking a district that recognizes their
interests are held to a higher standard than white Democrats
or Republicans.
4. The district court erred in finding a ",racial
gerrymander" from a combination o f awareness
o f racial demography, valid consideration o f
race in the districting process and the existence
o f correlations between districting factors and
race.
The district court’s ultimate legal conclusion of racial
gerrymandering is fatally flawed because it is based on racial
correlations and awareness, not predominant motive. The
court treated as improper: a legislature’s awareness of racial
demography (for example, because its redistricting software
displayed such information); its legitimate consideration of
race for valid reasons (such as the need to avoid
retrogression and fragmentation); and the existence of a
38
correlation between race and a uniformly applied criterion
in making districting decisions (such as partisan voting
patterns or the racial makeup of a minority incumbent’s or
aspiring incumbent’s supporters). The court incorrectly
treated the plan that emerged from the interplay of these
and other factors in the Legislature’s deliberations as
deliberate racial gerrymandering.
Without more, none of these phenomena individually
or in combination establishes that the Legislature acted from
predominant racial motives. Even if racial and ethnic
considerations played a role in the decisions to create
majority-minority districts in areas of the State where the
Gingles prerequisites existed, they were not the
"predominant" factors in the process. For, as discussed in
Point I.A. above, determinations about the number and
location of majority-minority districts incorporated
consideration of compactness and similar districting
principles, so that they do not reveal race to have been a
dominant, overriding motive.60 All of the other actions
“ Many of the facts cited by the lower court as indicative of a racial
gerrymander are simply manifestations of the decision, made in the same
manner as that in DeWitt, to create majority-minority districts. For
example, the court found fault in the fact that Senator Johnson sought
a "safe" African-American district. TX J.S. 9a. Yet "safe" is a
commonplace term used to describe a remedial district that provides a
compact, cohesive minority community with an equal opportunity to elect
candidates of its choice. E.g. African American Voting Rights Legal
Defense Fund, Inc. v. Villa, 54 F.3d 1345, 1347 n.4 (8th Cir.
1995)(defining "safe" and explaining its history); Monroe v. City of
Woodville, Miss, 819 F.2d 507, 510- 511 & n.l (5th Cir. 1987), cert, denied,
484 U.S. 1042 (1988)(after review of the "usage of the term in the
relevant jurisprudence," defines "safe district" as one "in which blacks are
likely to elect the representative of their choice").
While "safe" normally refers to a super-majority district of 60%-
65% population of the protected group, Senator Johnson sought, and
District 30 includes only 50% African-American population and less than
a majority of VAP. Senator Johnson’s definition of "safe district,"
39
which the district court found to be "racial" are not race-
motivated, but merely race-correlated.
Like all politicians, minority incumbents and aspiring
incumbents used sophisticated analysis to select voters
favorable to their candidacies. In a State with racially
polarized voting, there is a strong correlation between race
and support for a minority incumbent. Thus, it is quite
significant that minority incumbents and aspiring incumbents
did not blindly target all voters of the their own race or
ethnicity and did not blindly exclude voters of a different
race or ethnicity. For example, aspiring incumbent Senator
Johnson preferred African Americans who were
homeowners over African Americans who were more
transient, TX J.S. 30a-31a. In addition, District 30 was
extended to include a portion of Grand Prairie, Senator
criticized by plaintiffs’ expert, Dr. Weber, TR 11:9, virtually mirrors the
language of § 2, see PX 6E6, p. l)(defining "safe" as a district in which
blacks are "better able to participate in the electoral process by choosing
their own Congressional representative").
The lower court pointed to language in a Narrative of Voting
Rights Considerations submitted to the Department of Justice in
connection with the request for preclearance. That document, which was
not before the Legislature when it acted, indicates that the districts in
Houston "result in the maximization of minority voting strength," see TX
J.S. 21a (quoting PX 4C). Understood in context, the sentence means
simply that where the population met the first Gingles prong, a majority-
minority district was created, just as the Masters in DeWitt used the term
"maximize" to describe their efforts to do the same. Wilson v. Eu, 4 Cal
Rptr. 2d at 384, 417.
The district court also cites the "demand" for majority-minority
districts by "numerous interest groups who appeared before legislative
redistricting committee hearings." TX J.S. 61a. But since the Legislature
created majority-minority districts only where consistent with Gingles and
compactness, the occurrence of the "demands" proves nothing. See
Wilson, 4 Cal Rptr. 2d at 388-390 (similar "demandjs]" also made by
interest groups in California did not constitutionally taint Masters’ plan
that included deliberately drawn majority-minority districts).
40
Johnson’s home base, with only 14.7% African-American
voters, see supra p.9. Accommodating minority incumbents
may produce district boundaries which have a correlation to
race and ethnicity, but this correlation, like that between
race and partisan affiliation, does not mean that the
Legislature was "motivated by a racial purpose or object,"
Miller, 115 S. Ct. at 2487.
Similarly, the Legislature’s practice of honoring voter
requests to be in a particular district also cannot
automatically be equated with racial gerrymandering merely
because it is African Americans or Hispanics who make the
request. Voters in Texas of all races sought to be placed in
particular Congressional districts, and the Legislature
attempted to meet those desires to the extent possible
consistent with its other districting objectives.61 A rule that
allows white voter requests to be placed in white
representatives’ districts to be accommodated, but treats
compliance with other voters’ requests to be placed in
minority representatives’ districts as constitutionally suspect
or illegal, sets up a situation which forces the State to
discriminate against voters who support minority elected
officials. This cannot be the meaning of the Shaw and Miller
“ For example, the overwhelmingly white, Republican community of
Park Cities wished to remain in the District of white Republican
incumbent Sam Johnson, explicitly expressing the desire not to be in the
new minority opportunity district. U.S. Ex. 1038. In contrast, the
African-American community of Hamilton Park in Dallas and a small
African-American community in Plano desired to be in District 30, as did
a Jewish community in north Dallas. The motives of each of these latter
three communities were substantially partisan; each area had previously
been in Republican District 3 and would have been kept in District 3 if
their requests to be in District 30 had not been accommodated. Equally
important, the State’s motive in honoring the requests was race-neutral
and applied evenhandedly to all such requests. The desires of African-
American and Jewish Dallas voters are no more suspect or illegitimate
than the desires of white Park Cities voters.
41
rulings by this Court. Cf. Miller, 115 S. Ct. at 2497
(O’Connor, J., concurring).
Finally, the district court appears to have placed
heavy weight upon the fact that some minority voters who
would have been in the most compact versions of Districts
18, 29 and 30 were instead put in the districts of white
Democratic incumbents for partisan reasons, and therefore
different minority voters (who would not have been residents
of the most compact versions) were put in to Districts 18, 29
and 30. See TX J.S. 63a-64a, 67a-68a. Yet, this substitution
of less compact for more compact minority residential areas
was not motivated by "race for its own sake." Instead, the
motives were a combination of protecting white incumbents
and improving the election chances of aspiring members of
the Legislature. Senator Johnson, for instance, included
middle-income voters further north because she expected
that the included group would have a higher voting
participation rate. Id. at 62a-63a. Similarly, the court
acknowledged that the shape of Districts 18 and 29 in
Houston was constrained by "the conflicting ambitions of
Representative Martinez and then-Senator Gene Green," id.
at 66a,62 but erroneously condemned the resulting incidental
correlation as based on race.
The district court combined at least three different
types of voter placement into an ultimate conclusion of
racial gerrymander, failing to distinguish between minority
voters who: 1) reside within the boundaries of the idealized,
compact versions of the districts that it invalidated; 2) did
not reside within those idealized districting versions but were
added to the final districts either because they requested the
change or were identified as supporters of the incumbents or
aspirants for the newly created seats; or 3) were "substituted"
for voters in the first category who were removed from the
62See TX J.S. 38a n.28 (District 18’s shape resulted from configuration
of districts around it - including District 29).
42
idealized versions to accommodate incumbents (who
happened to be white) in adjacent districts. There is no way
to know from the district court’s opinion how many voters
fall into each category. Whatever the numbers, even if they
are substantial, each category flows from a motive that is
constitutionally permissible and not suspect.
The district court’s sweeping characterizations of the
"racial" nature of the lines for Districts 18, 29 and 30 also
are inconsistent with other findings concerning the
importance of incumbent and partisan candidate protection
in the line-drawing process and are infected with numerous
errors of law, including failure to distinguish between racial
motive and racial correlations. For example, the district court
stated:
Districts 18 and 29 are formed in utter disregard for
traditional redistricting criteria63 and . . . their shapes
are ultimately unexplainable on grounds other than
. . . racial quotas.
Id. 69a. Yet, a few pages earlier, the district court found as
to Districts 18 and 29 that "incumbent protection boundaries"
caused the irregular shapes and that "for the sake o f
maintaining or winning seats Congressmen or would-be
Congressmen shed hostile groups and potential opponents
by fencing them out of their districts," id. at 55a-56a.64
63As discussed in Point 3 above, none of Texas’ districts complied
with the list of "traditional" districting criteria adopted by the court below
and thus such non-compliance by Districts 18, 29 and 30 does not suggest
a racial motive.
64The court specifically found that the shapes of Districts 18 and 29
flowed from two non-racial factors that correlate with race and ethnicity:
1) the tug-of-war between Rep. Martinez and Senator Green "to place
their state constituents within the new district" and 2) "to the south
Congressman Andrews desired to maintain as many minority constituents
[voters who had supported him, who resided in the area proposed by
Congressman Washington to be added to District 18] as possible in his
43
As to District 30, the district court stated:
We conclude that the contours of Congressional
District 30 are unexplainable in terms other than
race. Neighborhoods, VTD’s and individual streets
were split to achieve the district’s racial mix. The
district was carefully gerrymandered on a racial basis
to achieve a certain number of African-American
voters; in order to protect incumbents, other African-
American voters were deliberately fenced out of the
District 30 and placed in other districts that are
equally "untraditional."
Id. at 65a. As with Districts 18 and 29, this finding reflects
several legal errors: 1) the court uses the wrong test,
focusing on violation of its own preferred "neutral"
districting criteria, while ignoring the important and
traditional Texas concern for protection of incumbents that
makes the district contours "explainable" on non-racial
grounds; 2) it compounds this error by ignoring the fact that
many majority-white districts divided neighborhoods and
VTDs to an equal extent65 so that in Texas, the splitting of
neighborhoods cannot legally support an inference of a
racial motive; 3) it ignores that highly compact versions of
District 30, with the same racial mix but very different
consequences for incumbents, would have maintained the
integrity of neighborhoods but were concededly rejected by
the State for the non-racial motive o f protecting incumbents;
and 4) it relies on the erroneous legal conclusion that
protection of the incumbents (who happen to be white) in
Democratic district." Id. at 66a. The court also concluded: "In numerous
instances, the correlation between race and district boundaries is very
nearly perfect," id. at 59a (emphasis added). Yet, as Miller makes clear,
mere correlation between race and district boundaries is not suspect.
“See, e.g., TX J.S. 9a.
44
adjacent districts is itself part of and evidence of a racial
gerrymander.
In effect, the court simply looked at the pattern of
voter distribution in the final plan and drew the simple
conclusion that race predominated throughout a legislative
process that was anything but simple. That finding is, as we
have shown, tainted by numerous errors of law and is
entitled to no weight. It is also contrary to the emphasis of
process and not just result, in Wright v. Rockefeller, 376 U.S.
52 (1964), and to what this Court said in Miller, 115 S. Ct. at
2487 (quoting Shaw, 113 S. Ct. at 2826)(it is the exceptional
case where a conclusion of racial gerrymandering can be
drawn from a districting plan on its face).
II. Districts 18, 29 and 30 Each Satisfy Strict
Scrutiny
Even if the "strict scrutiny" standard applies to the
1991 Texas Congressional redistricting plan, the judgment of
the court below is still wrong.
The Court’s decision last Term in Adarand
Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2117 (1995),
makes clear that strict scrutiny is not "fatal in fact." The
Court held that "government is not disqualified from acting
in response" to "the unhappy persistence of both the practice
and the lingering effects of racial discrimination," which the
Court realized is an "unfortunate reality" in this country, id.
The Constitution permits a State to take voluntary
action to remedy past racial discrimination and its current
effects. "There is a ‘significant State interest in eradicating
the effects of past racial discrimination.’" Miller, 115 S. Ct.
at 2490 (quoting Shaw, 113 S. Ct. at 2831). To engage in
race-conscious remedial action, the State must have "a strong
basis in evidence of the harm being remedied." Miller, 115
S. Ct. at 2491. Accord Wygant v. Jackson Board o f
Education, 476 U.S. 267, 277 (1986) (plurality opinion). The
State is not required "to prove the invalidity of its own
45
apportionment scheme" before creating majority-minority
districts. Voinovich v. Quilter, 113 S. Ct. 1149, 1156 (1993).
See also City o f Richmond v. Croson, 488 U.S. 469, 500
(1989)("strong basis in evidence" needed to justify remedial
plan); Wygant v. Jackson Board o f Education, 476 U.S. at
289-91 (O’Connor, J., concurring) (contemporaneous
findings of actual discrimination not required).
A. Districts 18, 29 and 30 Are Supported By A
Compelling State Interest
The court below assumed, without deciding, that
Texas had a compelling interest in creating majority-minority
districts in the areas of the State where Districts 18, 29 and
30 lie. TX J.S. 69a-70a. The evidence supporting the
remedial use of race in creating such districts surpasses the
"strong basis is evidence" standard. Overwhelming evidence
shows that the creation of such districts was justified to
remedy a tragic history of discrimination and its current
effects. Had it not created majority-minority districts in
Houston and Dallas, the State would have fragmented large,
politically cohesive minority populations and would have
faced virtually certain liability for violating § 2 and, with
respect to District 18, § 5 of the Voting Rights Act.
Both Shaw and Miller strongly suggest that a State
has a compelling interest in acting to comply with the Voting
Rights Act and thereby remedy the effects of prior
discrimination in voting practices. See Shaw, 113 S. Ct. at
2830; Miller, 115 S. Ct. at 2490. Both § 2 and § 5 of the
Act are remedial in nature. Section 2 operates when a
history of discrimination interacts with a challenged practice
or procedure with the result that "the political processes
leading to nomination or election . . . are not equally open"
to members of a protected class, in that "its members have
less opportunity than other members of the electorate to
46
participate in the political process and to elect
representatives of their choice."66
1. Section 5 o f the Voting Rights Act.
Congressional District 18 has provided African
Americans the opportunity to elect their representative of
choice to Congress since the election of Congresswoman
Barbara Jordan in 1971. Failure to maintain District 18 as
one in which African Americans could continue to elect
their representative of choice would have made the State
vulnerable to a valid objection under either the retrogression
or the purpose prong of § 5 of the Voting Rights Act.67
"[Tjhe purpose of § 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."
Miller, 115 S. Ct. at 2483 (quoting Beer v. United States, 425
U.S. 130, 141 (1976)). In addition to retrogression, given
the State’s overriding goal of protecting its incumbents,
treating African-American incumbent Craig Washington any
differently from white incumbents, by failing to create a
district from which he could be reelected, would have given
“ 42 U.S.C. § 1973(b). The constitutionality of § 2 of the Voting
Rights Act, as interpreted by this Court’s decisions, including Thornburg
v. Gingles and Johnson v. De Grandy, 114 S. Ct. 2647 (1994), has not been
questioned by a majority of the Court. In Johnson v. De Grandy, the
Court ruled, one year after Shaw, that "society’s racial and ethnic
cleavages sometimes necessitate majority-minority districts to ensure
equal political and electoral opportunity," id. at 2661.
67There is no question that it was possible in 1991 to configure a
Congressional district in Houston that would permit African-American
voters to elect a candidate of their choice. See supra pp. 3 n.6, 8.
47
rise to a very strong case of discriminatory intent, a current
violation of the Fourteenth Amendment, as well as § 5.68
2. Section 2 o f the Voting Rights Act.
In Johnson v. De Grandy, 114 S. Ct. 2647 (1994), this
Court reaffirmed the applicability of the Thornburg v.
Gingles, 478 U.S. 30 (1986), analysis for evaluating claims
under § 2 of the Voting Rights Act. De Grandy confirmed
that § 2 prohibits "fragmenting the minority voters among
several districts where a bloc-voting majority can routinely
out-vote them," "where its result, ‘interacting] with social
and historical conditions’ impairs the ability of a protected
class to elect its candidate of choice on an equal basis with
other voters." 114 S. Ct. at 2656 (quoting Voinovich v.
Quilter and Thornburg v. Gingles (citations omitted)). De
Grandy applied the "three now-familiar Gingles factors" as
"necessary preconditions" for "establishing vote dilution."
114 S. Ct. at 2656, 2657. Once those preconditions are
satisfied, De Grandy holds that a complex "totality of the
circumstances" analysis is required, in which proportionality
or lack thereof is a relevant fact. Id. at 2647.
a. "Reasonably compact" opportunity
districts.
"[Wjhen applied to a claim that single-member
districts dilute minority votes, the first Gingles condition
requires the possibility of creating more than the existing
number of reasonably compact districts with a sufficiently
large minority population to elect candidates of its choice."
Johnson v. De Grandy, 115 S. Ct. at 2655. The demographic
“ A departure from the State’s practice of protecting incumbents, by
falling to protect the State’s only African-American incumbent, while still
protecting white incumbents, would have been highly suggestive of
discriminatory intent. See, e.g., Washington v. Davis, 426 U.S. 229, 241
(1976); Busbee v. Smith, 549 F. Supp. 494, 516-17 (D.D.C. 1982), aff’d,
459 U.S. 1166 (1983).
48
evidence summarized above establishes that the Legislature
had more than a strong basis for believing that the African-
American communities in Harris and Dallas counties were
geographically compact and sufficiently large to elect their
candidates of choice and that the same was true of the
Hispanic population in Harris County.69
b. Racially polarized voting and other
indicia of barriers to minority political
opportunity.
The court below found that "[i]n general, some racial
polarization occurs in majority-minority districts in Texas."
TX J.S. 22a. Although the court did not make specific
findings about Harris and Dallas counties, the existence of
racially polarized voting in these counties is established by
overwhelming evidence of which the Legislature was well
aware.
A federal district court decided Williams v. City o f
Dallas, 734 F. Supp. 1317 (N.D. Tex. 1990), just as the
redistricting process was getting underway, in a 100-page
opinion well-known to the Legislature.70 A
contemporaneous court finding provides an extremely strong
69See, supra, pp. 5-7. In view of the State’s failure to give more than
lip service to compactness in constructing many of its majority-white
Congressional districts, it is arguable that much less compact hypothetical
liability districts would have satisfied the first Gingles threshold condition.
See Johnson v. De Grandy 114 S. Ct. at 2659 ("where a State has split (or
lumped) minority neighborhoods that would have been grouped into a
single district (or spread among several) if the State had employed the
same line-drawing standards in minority neighborhoods that it used
ebewhere in the jurisdiction, the inconsistent standard may be significant
evidence of a §2 violation, even in the face of proportionality").
"Reasonably compact" under Gingles is a relative concept that draws
meaning from the State’s general districting practices. Jeffers v. Clinton,
730 F. Supp. 196, 207 (1989), aff’d, 498 U.S. 1019 (1990).
^See, e.g., Lawson Ex. 7 11 15.
49
basis for remedial consideration of race in districting in the
Dallas area. The Court in Williams made findings of fact on
virtually all of the factors relevant under § 2 of the Voting
Rights Act. See, e.g., 734 F. Supp. at 1320 ("history of
minority participation in the political process of Dallas is not
one of choice; it is a record of what blacks and Hispanics
have been permitted to do by the white majority"); id. at 1393
("white bloc voting in Dallas . . . usually defeats the
preferred choice of African Americans"); id. at 1394
(summarizing record of white bloc voting since 1975);71 id.
at 1347-49, 1363 (racial appeals in Dallas elections).72 In
71The Williams court found that African-American candidates who ran
in the 1961, 1963, and 1965 city council elections were "defeated by
massive white bloc voting in North Dallas and in the other white areas
of the City," id. at 1321. More than ten years later, in a declaratory
judgment preclearance suit, City o f Dallas v. United States, 482 F. Supp.
183, 184 (D.D.C. 1979), "the City admitted that the white majority votes
as a bloc to enable it to defeat the minority’s preferred candidate," id.
at 1351. In 1983, African-American community leaders chose the best
candidate they could find, Marvin Robinson, to run in the next at-large
election. They unsuccessfully tried to raise money from white business
and community leaders and other whites with whom they had worked.
In a runoff, Robinson was soundly defeated by the white candidate. He
obtained almost all of the black vote but only 11 percent of the white
vote. Id. at 1323-1324. Between 1983 and 1990, "no serious black
candidate [ran] for an at-large seat in the Dallas City Council elections
because they perceived that it was impossible to win," id. See also id. at
1396.
72The Williams opinion cited "substantial economic disparities between
white and minority residents of Dallas," id. at 1382; see also id. at 1403,
as well as educational differences. "Credible testimony established that
these socio-economic disparities [in education, employment, housing, and
political opportunities available to minorities in Dallas] adversely affect
political participation by blacks and Hispanics, and that they are ‘a
reflection of prior discrimination in the community.’" Id. at 1403. The
court also found that "for over 50 years," up to as recently as 1989, "the
City of Dallas had caused, had supported, and had perpetuated racial
segregation and discrimination in low-income public housing programs
in this City," id. at 1377. The court stated that "the City simply continues
50
light of this ruling, the Legislature was strongly justified in
concluding that the Gingles second and third preconditions,
as well as the "totality of the circumstances," would weigh in
favor of liability under § 2 if it failed to draw a majority-
African-American district in Dallas.73
Similarly, there was substantial expert evidence
submitted to the court below supporting the conclusion that
racially polarized voting was pervasive in the Houston and
Dallas areas. The State’s expert witness, Dr. Allan
Lichtman, found a substantial pattern of polarized voting,
with African Americans voting cohesively, Hispanics voting
cohesively and whites usually voting as a bloc against
African-American and Hispanic candidates. In District 29,
the mean percent of whites voting for Hispanic candidates
in non-judicial elections was 6%. TX Ex. 14, Appendix 2,
Table 8. In District 30, the mean white vote for African-
American candidates in non-judicial elections was 11%, id.
to refuse to recognize that it has any responsibility to help solve the
monumental problems that are the legacy of the City’s mistake in having
the West Dallas project built to keep at least 3,500 blacks out of the
white areas of Dallas," id. at 1378.
73In addition to Williams, the State and its political subdivisions had
been repeatedly sued under the Voting Rights Act, and court decisions
finding high levels of racially polarized voting had been made in virtually
every area of the State with significant minority population. See J.A. 359-
362; TX Ex. 17 at 7-24. As a white Representative who played a key role
in constructing districts put it: "There was not a single member of the
Texas Legislature who was totally unaware of the existence and history
of racially polarized voting in the Houston/Harris County area, in Dallas
and in South Texas." J.A. 251-52 (Testimony of Paul Colbert). Senator
Rodney Ellis, one of only two African Americans in the State Senate,
confirmed: "In the Houston area, people vote largely along racial lines."
Lawson Ex. 7 11 6.
51
at Table 9, while in District 18 it was 16%, id. at Table 3.74
Plaintiffs’ expert, Dr. Ronald Weber, agreed with much of
Dr. Lichtman’s analysis and found similarly high or higher
levels of racially polarized voting in Districts 18, 29 and 30
in both primary and general elections. See PX 36E, Att.
F .75
Finally, the court below found: "Texas has a long,
well-documented histoiy of discrimination that has touched
upon the rights of African Americans and Hispanics to
register, to vote, or to participate otherwise in the political
74Dr. Lichtman employed ecological regression analysis, the standard
method for estimating the voting behavior of demographic groups from
data reported for political units. TX Ex. 14, Appendix 1 (Report of Dr.
Allan Lichtman). He supplemented ecological regression with extreme
case analysis of 90%+ white, African-American and Hispanic precincts.
Id. at Appendix 2.
75Although the district court noted Dr. Weber’s conclusion that the
level of racially polarized voting in currently existing districts "for the
most part . . . is not legally or politically consequential," J.A. 182 11 41,
cited at TX J.S. 23a, this conclusion is irrelevant to the analysis
concerning the § 2 or § 5 implications of failure to create majority-
minority districts. The concept of "legally significant racially polarized
voting" is district-specific and depends on whether, given the proportions
of minority and non-minority population and the level of bloc voting,
whites usually can defeat the candidate of choice of minority voters.
Gingles, 478 U.S. at 55, 57. This condition by definition does not exist
in a successful, remedial district created under the Voting Rights Act.
Dr. Weber’s conclusion about "legally consequential" racially polarized
voting in the current Districts 18 and 30, J.A. 182-183, is not surprising
since the white population in these districts is too small to defeat the
candidates of choice of the African-American and Hispanic communities.
Dr. Weber’s report and testimony simply do not address whether "legally
significant" racially polarized voting would have existed had the State
fragmented the African-American population so that it did not constitute
an effective voting majority in any Congressional district in the Houston
or Dallas regions.
52
process." TX J.S. 23a.76 The only minority candidates
elected to Congress from Texas since Reconstruction have
been elected from majority-minority districts, such as
Districts 18, 29 and 30. See TX Ex. 17, at 55 (Report of Dr.
Chandler Davidson). The same holds true for State Senate
seats. Id. at 51.77
Had the State not drawn districts to give recognition
to the voting strength of the large and geographically
compact African-American and Hispanic populations in
Houston and Dallas, plaintiffs suing under § 2 of the Voting
Rights Act would have been able to present conclusive proof
of all three of the Gingles threshold conditions and would
have had a very high likelihood of prevailing under the
"totality of the circumstances" standard. The Legislature was
76See, e.g., State Ex. 17 (Report of Dr. Chandler Davidson); J.A. 357
(Declaration of Dr. Charles L. Cotrell); Lawson Ex. 8 HH 3-13 (statement
of William M. Hale).
77Testimony at the Outreach Hearings conducted throughout the
State prior to redistricting and testimony admitted at trial establishes that
white representatives had been unresponsive and insensitive to the needs
of the minority populations in their districts. See, e.g., PX15I at 10
(testimony of T. Molina of the Business Committee of the Southeast
Texas Hispanic Council); PX15L at 34-35 (testimony of D. Hicks of the
Dallas Black Chamber of Commerce); PX15Q, tape 1, at 13 (testimony
of T. Campos); id., tape 2, at 7 (testimony of J. Mata); PX17, tape 1,
at 16; PX15Q, tape 1, at 9-10 (testimony of M. Almendarez, representing
Imagene de Houston and the Hispanic precinct judges in Harris County);
Lawson Ex. 1 HI 5, 7, 10, 12 (statement of Albert Black); Lawson Ex. 4
U1I 8-13 (statement of Comer Cottrell); Lawson Ex. 11 HI 13, 14, 16, 17
(testimony of former House member Jerald Larry); Lawson Ex. 17 HH 3,
4 (statement of former House member Jesse Oliver); Lawson Ex. 7 H 10
(statement of Senator Rodney Ellis); Lawson Ex. 21 H 13 (statement of
Grady W. Smithey, Jr.).
53
more than justified in recognizing this reality and voluntarily
complying with the requirements of the Voting Rights Act.
B. Districts 18, 29 and 30 are Narrowly Tailored
1. Districts 18, 29 and 30 meet this Court’s
requirements for narrow tailoring.
This Court’s precedents identify the appropriate
analysis to determine whether a race-conscious remedy is
narrowly tailored. The Court has looked at factors such as
1) the existence of alternative remedies; 2) whether the plan
is a "rigid" quota or a flexible "goal"; 3) the duration of the
plan; 4) the pool of individuals benefited by the plan; and
5) the effect of the plan on third parties. See United States
v: Paradise, 480 U.S. 149, 171-85 (1987); Wygant v. Board o f
Education, 476 U.S. at 279-84. Districts 18, 29 and 30 easily
satisfy these tests of narrow tailoring.
There is no available race-neutral alternative means
of remedying a history of political exclusion and complying
with the Voting Rights Act.78 Texas’ plan is flexible and its
voting rights districts do not function as quotas. They do
not prohibit non-minorities from running for office. In fact,
white candidates have won election in such districts,
currently including two of Texas’ nine majority-minority
districts. See also, e.g., Johnson v. De Grandy, 114 S. Ct. at
2665, 2697 (Kennedy, J., concurring in part and concurring
in the judgment)("[t]he assumption that majority-minority
districts elect only minority representatives . . . is false as an
empirical matter"). They do not prohibit any voter from
voting for the candidate of his or her choice. The African-
American districts have only bare population majorities,
78SchoIars have suggested cumulative or limited voting systems,
combined with multi-member districts as a less race-conscious alternative,
but a federal statute requires, with an exception not applicable in Texas,
that members of the House of Representatives be elected from single
member districts. 2 U.S.C. § 2c.
54
while in District 29, which has not yet elected the candidate
of choice of the Hispanic community,79 Hispanics represent
only 55% of the voting-age population. None of these
Districts guarantees results, each merely attempts to provide
an equal opportunity to minority voters, and the voters in
the districts can alter the results every two years.
A Congressional redistricting plan is by its nature
temporary. It will last only until the next decennial census,
at which time the Legislature without doubt will reevaluate
whether racially polarized voting persists and whether race
conscious districting remains necessary.
As to the fourth and fifth factors, a plan that fairly
reflects the voting strength of both the minority and non
minority population does not impose an undue burden on
third parties. The State’s plan does not dilute the voting
strength of white voters and does not advantage minority
voters, but merely attempts to provide them an equal
opportunity. The State did not create more minority
opportunity districts than § 2 requires and it did not place
more African-American or Hispanic voters in the
opportunity districts than was reasonably necessary to
provide minorities with an opportunity to elect candidates of
their choice.80
79See J.A. 230-31 (TX Ex. 14).
“ Plaintiffs’ expert claimed that Districts 18 and 30, but not District
29, were "overly safe," TR 111:81, even though Districts 18 and 30 have
only a bare majority in African-American voting age population and less
than a majority in VAP. At the same time, Dr. Weber’s own plan
increased the minority concentrations in some districts, for example, to
over 73% Hispanic in District 15, which Dr. Weber did not believe was
"overly safe." TR 111:33. Dr. Weber’s "overly safe" assertion was based
on speculation that African Americans and Hispanics would vote
cohesively as a combined minority coalition. This speculation,
unsupported by any evidence, was refuted by strong evidence of lack of
coalition voting. E.g., TX J.S. 22a. The District Court apparently did not
agree with the "overly safe" claim, which is understandable since this
55
2. The court below erred in interpreting narrow
tailoring to incorporate its own preferred, "ideal"
districting criteria.
The court below ruled that narrow tailoring requires
"the least possible amount of irregularity in shape." TX J.S.
72a. Under this ruling, race plus compactness must be the
exclusive determinant of districts drawn to serve a compelling
interest.
The lower court’s narrow tailoring ruling was based
on an incorrect understanding of Shaw. The district court
reasoned: "Because a Shaw claim embraces the district’s
appearance as well as its racial construction, narrow tailoring
must take both of these elements into account." TX J.S.
72a. Miller v. Johnson makes clear that the Shaw claim
does not "embrace" the district’s appearance, but only the
State’s predominant motive. Shape is relevant only as
evidence of an improper motive. Once the motive for
creating a majority-minority district is found to be supported
by a compelling interest, there is no reason to incorporate
district shape into the narrow tailoring analysis, especially in
a State such as Texas where many districts are equally
irregular in shape.
a. The decision below forces the State to
d isc rim in a te ag a in st m inority
communities of interest and minority
incumbents.
By imposing a special, regular-shape-maximization
requirement only on majority-minority districts, the court
below mandates that the State discriminate against racial
minorities, compared to other groups seeking recognition of
their voting strength. Texas’ majority-white districts are just
Court has held that different minority groups should not be combined to
assess Voting Rights Act compliance unless political cohesion between
the two groups is proved. Growe v. Emison, 113 S. Ct. 1075 (1993).
56
as irregularly shaped and cover much more territory, but are
not required to maximize compactness.
Under the rule established by the court below, a
State may construct irregular districts to recognize the voting
strength of any group that is not a historically disadvantaged
racial minority — even on the basis of suspect classifications,
such as partisan affiliation81 or religion. Yet, to obtain a
district that recognizes their interests, racial minorities must
convince Texas to forsake all of its other districting goals
and, even more to maximize the regular shape of
opportunity districts. This heaps an additional disadvantage
on minority groups which already suffer barriers to
participation in the political process.82
The ruling below also requires the State to
discriminate against minority incumbents and would-be
incumbents. To achieve other important State and non-
racial interests, Craig Washington’s District 18 became
irregular, just like the districts of white incumbents in Harris
County. By singling out one incumbent on the basis of race
and requiring his district to maximize regularity of shape, the
district court turns the only African-American incumbent
into a redistricting pariah, who is constitutionally disabled
from cooperating with his colleagues to accommodate highly-
valued State interests. It is unfair to force minority
politicians to defy the strong State tradition which all other
Texas politicians follow as stalwarts of their political
organization.
fASee Bandemer, 478 U.S. at 143 (partisan vote dilution occurs only
when electoral system consistently degrades voters’ influence on system
as a whole).
“ "Singling out the political processes affecting racial issues for
uniquely disadvantageous treatment" violates Equal Protection.
Washington v. Seattle School District No. 1, 458 U.S. 457, 486 n.30 (1982).
57
Similarly, although Districts 29 and 30 had no
incumbent, two State Senators, one white and one African-
American, and a Hispanic Representative, were treated as
other functional incumbents in the Texas tradition. The
court below erred in ruling that Shaw requires the State to
treat these aspirants differently than other incumbents, based
on their race, or that of their constituents.
b. The decision below violates the
principle of federalism.
The lower court’s conclusion means that a State has
less flexibility when it acts voluntarily than when it waits to
be sued under § 2. After finding a violation, the federal
court must give the State an opportunity to devise a plan
that will remedy the violation most consistently with the
State’s self-defined districting goals. Wise v. Lipscomb, 437
U.S. 535, 540 (1978)(quoting Bums v. Richardson, 384 U.S.
73, 85 (1966))("a State’s freedom of choice to devise
substitutes for an apportionment plan found unconstitutional
shall not be constricted" more than necessary to provide a
remedy), 542-43 (same principle applies to remedy for
Voting Rights Act violation). Contrary to the holding of the
court below, a State interest is not required to be
"compelling" before it can be accommodated at the same
time that a remedy is crafted. E.g. Milliken v. Bradley, 433
U.S. 267, 280-81 (1977) ("[t]he federal courts in devising a
remedy must take into account the interests of State and
local authorities"). The district court’s double standard,
allowing States which wait to be sued to use their normal
discretion in designing a remedy that best serves the State’s
interests, is contrary to the federal policy of encouraging
voluntary compliance and will open the floodgates of
unnecessary litigation.
The definition of narrow tailoring adopted below
converts the rationale of Shaw v. Reno and Miller v. Johnson
from an anti-discrimination principle to a constitutional
prohibition on non-racial influences on the shape of minority
58
opportunity districts and thus undermines the principle of
federalism. Where a regularly shaped version of an
opportunity district is rejected for non-racial reasons, such
as incumbent protection, partisan political considerations,
and the desires of residents, the plan is narrowly tailored
because it accomplishes the race-conscious remedial
objective in the manner that does least damage to other
important State interests. Texas’ 1991 Congressional
districting plan meets this standard and therefore the district
court should be reversed and the plan upheld.
III . The Plaintiffs Lack Standing
United States v. Hays emphasized that the well-
established Article III requirements for standing apply with
full vigor to the constitutional claim recognized in Shaw. See
115 S. Ct. 2431 at 2435, citing, e.g., Lujan v. Defenders o f
Wildlife, 504 U.S. 555 (1992) and Allen v. Wright, 468 U.S.
737 (1984); id. at 645. Allen, the Court said, "made clear
that even if a governmental actor is discriminating on the
basis of race, the resulting injury ‘accords a basis for
standing only to "those persons who are personally denied
equal treatment" by the challenged discriminatory conduct.’"
Id. (citations omitted).
The Court "discussed the harms caused by racial
classifications in Shaw . . . Any citizen able to demonstrate
that he or she, personally, has been injured by that kind o f
racial classification has standing to challenge the
classification in federal court." Id. at 2436 (emphasis added).
In Hays, the Court concluded that the plaintiffs lacked
standing to challenge a Congressional district they alleged
was fashioned by "purposefully distinguishing] between
voters on the basis of race," id. (quoting Shaw, 113 S. Ct. at
2826), because they did not live within the district and hence
could not "suffer those special harms."
Nothing in Hays indicates, however, that residency
within a challenged district, without more, suffices to
59
establish standing to sue. Rather, the Court was careful to
note that "[vjoters [residing] in such districts may suffer the
special representational harms racial classifications can cause
in the voting context," 115 S. Ct. at 2436 (emphasis added).
Thus, to establish their standing in the case at bar, the
plaintiffs were required to allege and prove83 not only that
they resided within the challenged districts but also that they
personally suffered the harms caused by the alleged racial
classifications. The court below made no findings that would
support plaintiffs’ standing, and it could not have done so
because plaintiffs failed to prove any such injury.
Accordingly, this action should be remanded with
instructions to dismiss their complaint. See Hays, id. at 2436,
2437.
Hays and Shaw describe two types of harm that may
be suffered by individual residents of a district in the
construction of which voters were differentiated on the basis
of race: "stigmatic" harm84 and "representational" harm.85
None of the plaintiffs in this case alleged or proved that he
or she suffered either of such harms. Their complaint
alleged no injury, only that they "ha[d] standing,"
“ The standing inquiry continues throughout the course of litigation;
standing, if controverted, "‘must be "supported adequately by the
evidence adduced at trial"’ to avoid dismissal on standing grounds," 115
S. Ct. at 2435 (citing, e.g., Lujan).
S4"[R]acial classifications . . . in general, . . . ‘threaten to stigmatize
individuals by reason of their membership in a racial group and to incite
racial hostility.’" 115 S. Ct. at 2436 (quoting Shaw). Of course,
stigmatization by itself is not sufficient unless some personal harm flows
from it. Allen v. Wright.
“ "We also noted [in Shaw] ‘representational harms’ the particular
type of racial classification at issue in Shaw may cause: When a district
obviously is created solely to effectuate the perceived common interests
of one racial group, elected officials are more likely to believe that their
primary obligation is to represent only the members of that group, rather
than their constituency as a whole." 115 S. Ct. at 2436 (emphasis added).
60
J .A . 39 11 31, which was controverted by intervenors, id. at
56 11 31, 60 11 28, and was not proved.
First, plaintiff Chen resides in Congressional District
25 (Chen Dep. 21-22) and thus under Hays lacks standing to
challenge any of the three invalidated districts at issue on
this appeal. Second, the testimony of the other plaintiffs
was inadequate to demonstrate their standing. Plaintiff
Blum’s complaints about the representation provided by
Congressman Washington were not based on race and were
shared by so many of the district’s voters that Washington
was defeated by Rep. Sheila Jackson Lee. Blum’s only
purported "stigmatic" injury related to his belief in "color
blind" districting, see TR 1:23,86 which was also the only
injury asserted by the other plaintiff residing within District
18, see Powers Dep. 48.
Other plaintiffs gave evidence inconsistent with
assertions of representational harm. Plaintiff Thomas had
been "very, very favorably impressed" with nominee Sheila
Jackson Lee and expected that she would be a good
Representative. Thomas Dep. 74. Ms. Thomas said that
Sheila Jackson Lee does not ignore white voters, and that
she expected that as a Congresswoman, Rep. Lee would
“ This Court has recognized that districting need not be "colorblind"
to pass constitutional muster. E.g., Miller, 115 S. Ct. at 2490 (permissible
to recognize relevant interests of members of racial group who live
together in one community); see, e.g., Bandemer, 478 U.S. at 147
(O’Connor, J., concurring) (redistricting always involves competing
"political, religious, ethnic, racial, occupational, and socioeconomic
groups"). It is only when all or virtually all other districting principles are
subordinated to race that a Shaw claim may arise. Miller, 115 S. Ct. at
2488. Thus, a complaint that districting was not "colorblind" neither
states a claim nor describes an injury in fact that is sufficient to confer
standing.
61
reach out to white voters and try to build racial bridges. Id.
at 78. Plaintiff Vera stated that he had been represented by
African-American Congresswoman Barbara Jordan while he
was a resident of District 18; that he visited Rep. Jordan in
Washington; and that he "supported" her, thought she was
"a good congresswoman, conscientious," who "paid attention
to her constituents." Vera Dep. 63.
Plaintiff Barbara Thomas, who now resides in District
29, likewise expressed her belief in "colorblind" districting,
Thomas Dep. 69-70, but indicated that she did not regard
her Congressman (Rep. Gene Green) as an adequate
representative because he is a Democrat, id. at 47. Thomas
characterized her concern with the consideration of race in
the districting process as a "theoretical" one, id. at 69-70, and
stated that she did not feel discriminated against and was riot
segregated, id. at 70-71 (emphasis added). The other plaintiff
residing in District 29, Mr. Vera, supports "colorblind"
districting, Vera Dep. 18, but expressed no complaints about
inadequate representation by Congressman Green, whom he
corresponds with "all the time" and whose office he visits
"quite often," id. at 66.
The remaining plaintiff, Pauline Orcutt, resides
within District 30 in Dallas. She stated that Congresswoman
Johnson does not represent her because she (Orcutt) has a
conservative philosophy and Rep. Johnson is an "ultraliberal"
who supports President Clinton (Orcutt Dep. 20-24). Orcutt
admitted that these complaints, and the disenchantment of
some District 30 residents with Rep. Johnson, are not
related to race, id. at 26, but rather are partisan in nature,
id. at 84-85.
62
Strong, uncontradicted evidence shows that the
Congressional representatives of Districts 18, 29 and 30
effectively represent their constituents, regardless of race or
ethnicity.87 The only evidence on racial stereotypes shows
that minority opportunity districts help break down, rather
than reinforce these notions, by giving highly qualified
minority representatives, such as Barbara Jordan, exposure
in the white community.88 Moreover, analysis of voting
returns in Congressional elections in Texas before and after
the 1991 redistricting indicate increases in white crossover
voting for African-American and Hispanic candidates in the
areas now contained in all but two of the State’s minority
i7See, e.g., Lawson Exs. 7 11 11; 9 II 11; 10 HI 4, 9 (white voter in
District 18); 12 HH 5, 7; 13, U 3, 21 tH 9, 11, 16 (white voter in Dallas
County); 22 UH 4, 6-7, 9 (white voter in District 30); 23 HI 10-14; 25 HI
7-9, 12 (white voter in District 30).
88See Lawson Ex. 7 H 6 ("Barbara Jordan’s . . . strong example made
it easier for other African-American elected officials to gain some level
of acceptance in the white community.").
63
opportunity districts,89 a further indication that the
"representational" harm identified in Shaw has not occurred
in Texas minority opportunity districts following the
enactment of the challenged reapportionment plan.
Under these circumstances, the district court should
have dismissed this litigation for want of jurisdiction; and
this Court should now vacate the lower court’s decision and
remand for that purpose.
85The following chart is based upon the information contained in
Tables 1-9, Appendix 2, to the Final Report of Dr. Allan J. Lichtman,
TX Ex. 14. The body of the report is set out at J.A. 203.
% White Vote for African-American/Hispanic Candidates
in Contests with White Candidates in Texas’
1991 Redistricting Minority Opportunity Districts'
Minority
Opportunity 1992 Pre-1992
District # Elections Elections
15 37% 22%
16 33% 30%
18 29% 24%.
20 25% 6%
23 16% 9%
27 50% 27%
28 0% 7%
29 5% 5%
30 64% 15%
"Percentages shown are averages for statewide, countywide and legislative
district elections held within the precincts of the minority opportunity
districts under the 1991 plan. 1992 averages for Districts 27, 28 and 30
are based on one election.
64
CONCLUSION
The complaint should be dismissed for lack of
standing. In the alternative, the decision of the district court
finding Texas Congressional Districts 18, 29 and 30
constitutionally invalid should be reversed, and the
complaint should be dismissed.
Respectfully submitted,
Antonia H ernandez
Anthony E. Chavez
Mexican American Legal
Defense and
Educational Fund
634 South Spring Street
Los Angeles, CA 90014
(213) 629-2512
Carmen R umbaut
C ounse l o f Record,
LULAC Appellants
Mexican American Legal
Defense and Educational
Fund
140 E. Houston, Suite 300
San Antonio, Texas 78205
(210) 224-5476
Elaine R. Jones
Director-Counsel
Theodore M. Shaw
Associate Director-Counsel
Norman J. Chachkin
NAACP Legal Defense &
Educational Fund, Inc.
99 Hudson Street
Sixteenth Floor
New York, New York 10013
(212) 219-1900
Penda D. Hair
Counsel o f Record,
Lawson Appellants
NAACP Legal Defense &
Educational Fund, Inc.
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005
(202) 682-1300
65
Charles Drayden
Drayden, Wyche & Wood,
L.L.P.
1360 Post Oak Blvd.
Suite 1650
Houston, Texas 77056
(713) 965-0120
Lawrence Boze
2208 Blodgett
Houston, TX 77004
(713) 520-0260
Kevin Wiggins
White, Hill, Sims &
Wiggins
2500 Trammel Crow
Center
2001 Ross Avenue
Dallas, Texas 75201
(214) 954-1700
66
ADDENDUM
47 Percent African American
Democrat Eddie Bernice Johnsot
89 Percent White
Republican Joe Barton
District 6 Barton Residence
87 Percent White
Democrat Pete Geren
COMPARISON OF SELECTED TEXAS CONGRESSIONAL DISTRICTS
(NOT DRAW N TO SCALE) PLAN ID: PURLC657
DAN MOKAI.ES
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