Richards v Vera Appeal Appendix to Jurisdictional Statement

    No.

IN THE
Supreme Court of the United States

October Term, 1994

ANN RICHARDS, G overnor o f  T exas, et al.,
Appellants,

vs.

Al Vera, et al.,
Appellees.

On  Appeal from the United States District 
Court for the Southern District of Texas

APPENDIX TO
JURISDICTIONAL STATEMENT FOR 

STATE APPELLANTS

DAN MORALES 
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

Renea Hicks* *
State Solicitor
* Counsel o f Record

P.O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 
(512) 463-2085

October, 1994 Attorneys for Appellants



1

TABLE OF CONTENTS - APPENDIX

Page(s)

Order, September 2, 1994 ......................................  la

Amended Order, September 20, 1994 .........................  3a

Opinion, August 17, 1994 ............................................ 5a

Notice of Appeal, September 22, 1994 .......................  85a

Voting Rights Act (Sections 2 and 5) ...........................  87a



IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Filed September 2, 1994

AL VERA, et al.,

Plaintiffs,

v.

ANN RICHARDS, et al„ 

Defendants, 

v.

REV. WILLIAM LAWSON,
et al.,

Defendant-Intervenors,

v.

UNITED STATES OF 
AMERICA,

Defendant-Intervenor,

LEAGUE OF UNITED LATIN 
AMERICAN CITIZENS 
(LULAC) OF TEXAS, et al.,

Defendant-Intervenors.

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2a

ORDER

This court has carefully reviewed the briefs and submissions of 
parties pertaining to the question of relief from the unconstitutional 
Congressional districts created by the state of Texas, and, based upon 
the applicable law and the facts as represented to this court, it is 
hereby:

ORDERED
1. That the fall 1994 Congressional elections for the state of 

Texas shall proceed according to the districts created by the 1991 plan
C657;

2. that the Texas legislature shall develop on or before March 
15, 1995, a new Congressional redistricting plan in conformity with 
this court’s previous opinion during the 1995 regular legislative 
session that convenes on January 10, 1995;

3. that on or shortly after March 5, 1995, this court will hold a 
remedial hearing on the status of the legislature’s redistricting efforts;

4. that plaintiffs shall submit their application for attorneys 
fees and costs within 30 days of the date hereof; and

5. that all other relief sought by the parties in their post-trial 
submissions on relief is denied.

SIGNED at Houston, Texas, on this the 2nd day of September 
1994.

_____________ /§/_________________
EDITH H. JONES

UNITED STATES CIRCUIT JUDGES

_____________ IsL_________________
DAVID HITTNER

UNITED STATES DISTRICT JUDGE

Is/
MELINDA HARMON 

UNITED STATES DISTRICT JUDGE



3a

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Filed September 20, 1994

AL VERA, et al., §
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Plaintiffs, §
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v - §
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ANN RICHARDS, et al., §
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Defendants, §

v.

REV. WILLIAM LAWSON, 
et al.,

Defendant-Intervenors,

v.

UNITED STATES OF 
AMERICA,

Defendant-Intervenor,

LEAGUE OF UNITED LATIN 
AMERICAN CITIZENS 
(LULAC) OF TEXAS, et al.,

Defendant-Intervenors.

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4a

AMENDED ORDER

This court has considered the state’s Unopposed, Emergency 
Motion for Expedited Entry of Explicit Injunction, and, finding it 
well-grounded, it is hereby:

ORDERED that the state’s Unopposed, Emergency Motion for 
Expedited Entry of Explicit Injunction is GRANTED; it is further 
ordered that:

The Court’s Order entered September 2, 1994, is hereby 
amended nunc pro tunc to provide as additional relief that the state 
defendants, their officers and assigns, and all those in active concert 
or participation with them are hereby enjoined from conducting 
(including opening candidate qualifying) the 1996 Congressional 
elections for the state of Texas according to the districts created by 
the 1991 plan C657.

SIGNED in Houston, Texas, on this the 19th day of 
September, 1994.

_____________ /§/_________________
EDITH H. JONES

UNITED STATES CIRCUIT JUDGES

____________Is/_______________
DAVID HITTNER

UNITED STATES DISTRICT JUDGE

Is/
MELINDA HARMON 

UNITED STATES DISTRICT JUDGE



5a

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Filed August 17, 1994

AL VERA, et al.,

Plaintiffs,

v.

ANN RICHARDS, et al., 

Defendants, 

v.

REV. WILLIAM LAWSON,
et al.,

Defendant-Intervenors,

v.

UNITED STATES OF 
AMERICA,

Defendant-Intervenor,

LEAGUE OF UNITED LATIN 
AMERICAN CITIZENS 
(LULAC) OF TEXAS, et al.,

Defendant-Intervenors.

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6a

TABLE OF CONTENTS

I. Introduction ..................................................  1
II. Procedural History ........................................  5
III. Evidentiary Background .............................. 8

A. Texas Demography Related to Redistricting 8
B. Pertinent History Related to Redistricting

in Texas ...............................................  11
C. The 1991 Congressional Redistricting

Process ...............................................  13
1. General Background ..............  13
2. Voting Rights Act Considerations 17

a. Racial Polarization 20
b. History of Discrimination 22

3. Incumbents’ Interests ........  23
4. Use of Racial Data ..........  25
5. Congressional District 30 ... 27
6. Congressional Districts 18 and 29 37
7. Congressional District 28 ... 43
8. Other Congressional Districts 46

D. Expert Testimony ..............................  51
E. Other Districting Plans ..................  55

IV. Factual Findings and Legal Conclusions .... 57
A. The Voting Rights District .........  72

2. Congressional District .........  78
3. Narrow Tailoring to Achieve a Compelling

State Interest? ...................... 84
4. Congressional District 28   89

B. Other Congressional Districts .......  90
V. Conclusion   92

Special Concurrence ..............................
Appendix (Maps of Districts 18, 29, 30)



7a

OPINION

Before JONES, Circuit Judge, HITTNER and HARMON, District 
Judges. EDITH H. JONES, Circuit Judge:

I. INTRODUCTION

The Voting Rights Act of 1965 at one blow demolished the 
obvious devices that southern states had used to disenfranchise 
African-American voters for decades. The Act marked the full 
maturity in American political life of the Founders’ idea that ‘'all men 
are created equal” and the Rev. Martin Luther King’s hope that his 
children would be judged by the content of their character, not the 
color of their skin. The meaning of equality — as also enshrined in the 
Fourteenth Amendment’s guarantee of “equal protection of the laws” - 
- is the subject of this lawsuit.

It is no longer disputed that the Fourteenth and Fifteenth 
Amendments embody a right to ballot box equality among American 
citizens of different races or ethnic backgrounds. See, e.g., Rodgers v. 
Lodge. 458 U.S. 613 (1982); Baker v. Carr. 369 U S. 186 (1962); 
Gomillion v, Lightfoot. 364 U.S. 339 (1960). The Fourteenth 
Amendment also prohibits government from invidiously classifying 
persons because of their race. Repeatedly and in the strongest terms, 
the Supreme Court has condemned intentional racial discrimination by 
state agents or bodies. Where official discrimination is found to exist, 
the burden is on the governmental body to justify it by no less than a 
compelling governmental interest.

One year ago, the Supreme Court reaffirmed that intentional 
racial discrimination is offensive to the Equal Protection Clause when 
it occurs as part of legislative redistricting. See Shaw v. Reno. 113
S.Ct. 2816 (1993). In Shaw, the Court held that “redistricting 
legislation [is unconstitutional if it] is so extremely irregular on its 
face that it rationally can be viewed only as an effort to segregate the 
races for purposes of voting, without regard for traditional districting 
principles and without sufficiently compelling justification.” Id. at 
2824.

In 1991, the State of Texas deliberately redrew its 
Congressional boundary lines following the 1990 census with nearly 
exact knowledge of the racial makeup of every inhabited block of land



8a

in the state. This insight, worthy of Orwell’s Big Brother, was 
attainable because computer technology, made available since the last 
decennial census, superimposed at a touch of the keyboard block-by­
block racial census statistics upon the detailed local maps vital to the 
redistricting process. Not only did the state know the precise location 
of African-American, Hispanic, and Anglo populations, but it 
repeatedly segregated those populations by race to further the 
prospects of incumbent officeholders or to create ‘fnajority-minority” 
Congressional districts. The result of the Legislature’s efforts is 
House Bill 1 (‘HB1’), a crazy-quilt of districts that more closely 
resembles a Modigliani painting than the work of public-spirited 
representatives.1

The challenged plan (HB1) was passed in the second called 
session of the 72nd Texas Legislature and signed into law by the 
Governor on August 29, 1991. See Plaintiff Exh. 1. On November 
18, 1991, the Texas Congressional Redistricting Plan received § 5 
preclearance from the Attorney General.2 See United States Exh. 
1007; Stip. 37. Notwithstanding the preclearance, the Attorney 
General expressed fundamental reservations about the redistricting 
plan:

While we are preclearing this plan under Section 5, the 
extraordinarily convoluted nature of some districts 
compels me to disclaim any implication that the 
proposed plan is otherwise lawful or constitutional.

United States Exh. 1007 at 2.

The plaintiffs in this case are six Texas voters who reside in 
Congressional Districts 18, 25, 29, and 30. In a pretrial stipulation,

HB1 will alternatively be referred to as Plan C657, the plan number 
assigned by the State’s redistricting software to the plan embodied in HB1.

As Texas is covered by § 5 of the Voting Rights Act, the Legislature must 
either (1) have any proposed plan precleared by the Department of Justice, or (2) 
seek a judgment from the United States District Court for the District of Columbia 
declaring that the plan "does not have the purpose and will not have the effect of 
denying or abridging the right to vote on account of race or color. . . . "  Voting 
Rights Act of 1965, 42 U.S.C. § 1973c.



9a

they alleged that 24 of the state’s 30 Congressional Districts are the 
product of racial gerrymandering or intentional racial discrimination.3

The question before this court is whether any of the 24 
challenged Congressional Districts, many of whose boundaries were 
clearly affected by racial considerations, can be sufficiently explained 
by legitimate redistricting criteria other than race. See Shaw. 113 
S.Ct. at 2824. For reasons that follow, we conclude that 
Congressional Districts 18, 29, and 30 as presently drawn are not so 
explainable. They were conceived for the purpose of providing “safe” 
seats in Congress for two African-American and an Hispanic 
representatives. They were scientifically designed to muster a 
minimum percentage of the favored minority or ethnic group, minority 
numbers are virtually all that mattered in the shape of those districts. 
Those districts consequently bear the odious imprint of racial 
apartheid, and districts that intermesh with them are necessarily 
racially tainted.

Other challenged Texas Congressional Districts are disfigured4 
less to favor or disadvantage one race or ethnic group than to promote 
the reelection of incumbents; they are not unconstitutionally 
segregated.

We do not hold that the state may only draw Congressional 
boundaries with a blind eye toward race, a goal which would be 
impossible, nor that it is altogether prohibited from creating majority- 
minority districts. But when the State redraws the boundaries of 
Districts 18, 29, and 30 and contiguous districts, it can and must 
exhibit respect for neighborhoods, communities, and political 
subdivision lines. As the Supreme Court put it, appearances do 
matter. In appearance and in reality, these three districts were racially 
gerrymandered.

Racial gerrymandering is unconstitutional, but it is also morally 
wrong, inconsistent with our founding tradition and Martin Luther 
King’s vision. The color of a person’s skin or his or her ethnic 
identity is the least meaningful way in which to understand that

The plaintiffs’ post-trial submissions seem to suggest that they now 
challenge ah 30 districts, but we reject this belated attempt to broaden the scope 
of the case.

To call these districts “configured” in any sense that implies order would 
be a misnomer.



10a

person. To elevate racial classification as a basis for political 
representation inevitably defeats the principle of equality because it 
causes all of society to become more, not less, race-conscious. Justice 
William O. Douglas put this point well:

When racial or religious lines are drawn by the State, 
the multiracial, multireligious communities that our 
Constitution seeks to weld together as one become 
separatist; antagonisms that relate to race or to 
religion rather than to political issues are generated; 
communities seek not the best representative but the 
best racial or religious partisan. Since that system is 
at war with the democratic ideal, it should find no 
footing here.

Wright v. Rockefeller. 376 U.S. 52, 67 (1964) (Douglas, J., 
dissenting) (quoted in Shaw. 113 S.Ct. at 2827).

II. PROCEDURAL HISTORY

The plaintiffs are six registered voters who reside in 
Congressional Districts 18, 25, and 29 (located in whole or in part in 
Harris County), and in District 30 (most of which is located in Dallas 
County). See Complaint at 4 |̂7. Plaintiffs filed their Original 
Complaint for Permanent Injunction and Declaratory Judgment and 
Motion for Preliminary Injunction on January 26, 1994 against the 
Governor, the Lieutenant Governor, the Attorney General, and the 
Secretary of State as well as the Speaker of the Texas House of 
Representatives.

The complaint alleged that the 1991 Congressional Redistricting 
Plan for the State of Texas ‘Yepresents an unconstitutional effort to 
segregate the races for purposes of voting: (1) without regard for 
traditional districting principles, including compactness, 
contiguousness [sic], consistency with existing political, economic, 
societal, governmental or jurisdictional boundaries; (2) without 
sufficiently compelling justification; and (3) without ‘narrow



11a

tailoring’ as required by the United States Constitution.” Complaint 
at 2 HI.5

Candidate qualifying for the March 8, 1994 primary elections in 
Texas closed on January 3, 1994 and early voting began on February 
16. On March 2, 1994, the court entered an order denying the 
plaintiffs’ motion for a preliminary injunction and their motion for 
consolidation and expedited hearing and set trial for June 28, 1994. 
Also on March 2, 1994, the court granted the motion of the United 
States to participate as amicus curiae in the case. On March 14, 
1994, the state defendants in this action filed their answer to the 
complaint.

On May 5, 1994, the court granted the motion to intervene of six 
African-American registered voters represented by the NAACP Legal 
Defense and Educational Fund, Inc. (‘Lawson Intervenors’). On May 
20, 1994, the court granted the motion of the United States to 
intervene. A week later, on May 27, 1994, the court entered an order 
granting intervention to both The League of United Latin American 
Citizens (‘LULAC’) and seven Hispanic registered voter members of 
the organization.

On June 13, 1994, the United States filed a motion to bifurcate 
trial; the court denied the motion on June 17, 1994. On June 16, 
1994, the court conducted the pretrial conference. At the pretrial 
conference, the court set the pretrial schedule and directed the 
plaintiffs to file a statement narrowing the districts to which they 
asserted challenges and eliminating any claims not supported by 
substantial evidence or case law. In response, on June 16, 1994, the 
plaintiffs filed a statement dismissing their § 26 and state 
constitutional claims and identifying six districts that they did not 
challenge under the Fourteenth Amendment. In a subsequent filing, 
the plaintiffs dismissed their Fifteenth Amendment claims.7 Trial was 
held June 27-30 and concluded on July 1, 1994.

In addition to their claim under the Equal Protection Clause of the 
Fourteenth Amendment, the plaintiffs alleged that the 1991 Congressional 
Redistricting Plan violated the Fifth and Fifteenth Amendments, as well as the 
Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973. Complaint at 14 U 39-
6 Voting Rights Act of 1965, 42 U.S.C. § 1973.

As delineated in their June 16th specification, the plaintiffs challenge 
twenty districts as unconstitutional racial gerrymanders under the framework of



12a

To expedite matters, this court limited the parties’ trial time 
while permitting them to submit virtually unlimited additional 
documentary and deposition evidence. The parties liberally accepted 
this offer.8 The court has reviewed all of the evidence brought before 
us. The record references below highlight and summarize the 
testimony.

III. EVIDENTIARY BACKGROUND

A. Texas Demography Related to Redistricting
Congressional redistricting in Texas operated against a 

backdrop of important demographic changes throughout the state. 
Population growth from 1980 to 1990 was largely attributable to 
significant population growth among Hispanics and African- 
Americans. Of particular interest is the enormous increase in 
Hispanic population state-wide. Thus, what follows are the Census 
figures chronicling minority-led population growth in Texas during the 
1980’s.

According to the 1980 Census, Texas’ total population was 
14,229,191, of whom 2,985,824 (20.98%) were Hispanic, 1,692,542 
(11.89%) were non-Hispanic African-American, and 9,350,297 
(65.7%) were Anglo. See Stip. 7. By the 1990 Census, Texas’ total 
population had increased to 16,986,510, of whom 4,339,905 (22.55%) 
were Hispanic, 1,976,360 (11.63%) were non-Hispanic African- 
American, and 10,291,680 (60.59%) were Anglo. The increase in 
population from 1980 to 1990 (2,757,319 persons) entitled Texas to 
three additional seats in the United States House of Representatives, * 13

Shaw v, Reno. 113 S.Ct. 2816 (1993). The targeted districts are Districts 3-9, 12-
13, 18-19, 21-26, and 28-30. Four additional districts — Districts 1, 2, 14, and 15 - 
- were challenged; under Hays v. Louisiana (Hays I), 839 F.Supp. 1188 (W.D. La.
1993) . The Supreme Court vacated the judgment in Hays I and remanded the case 
to the district court for further consideration in light of the Louisiana Legislature’s 
repeal of Act 42 and creation of a new districting scheme in Act 1. See Louisiana 
v. Hays, 62 U.S.L.W. 3859 (June 27, 1994). After a two-day trial, the district court 
once again struck down the Louisiana redistricting plan as an unconstitutional 
racial gerrymander. See Hays v, Louisiana (Hays II), No. 92-1522 (W.D. La.
1994) . The court adopted by reference its opinion in Havs I. See id. at 2. This 
court finds it unnecessary, to determine whether, as the parties argue, Havs I goes 
beyond Shaw.

The parties, however, chose not to use all of their allotted trial time.



13a

increasing the size of the delegation from 27 to 30. See Stip. 8. Based 
on the 1990 Census, the ideal size of a Texas Congressional district is 
566,217. See Stip. 17.

Under the 1980 Census, Texas’ voting-age population was 
9,923,085, of whom 1,756,971 (17.71%) were Hispanic, 1,095,836 
(11.04%) were non-Hispanic African-Anerican, and 6,932,894 
(69.87%) were Anglo. See Stip. 9. By 1990, Texas’ voting-age 
population had increased to 12,150,671, of whom 2,719,586 (22.38%) 
were Hispanic, 1,336,688 (11.0%) were non-Hispanic African- 
American, and 7,828,352 (64.43%) were Anglo. See Stip. 10. 
Taking citizenship into account alters these percentages. Under 1990 
figures, the total citizen voting age population is only 11,313,641, of 
whom 2,085,857 (18.4%) were Hispanic, and 1,315,860 (11.6%) were 
non-Hispanic African-American. See State Exh. 14, Appendix 1.

Even a cursory review of the foregoing Census data reveals the 
significant growth experienced by minority communities, and, in 
particular, the explosive population growth among Hispanics in 
Texas. The Hispanic population in the state grew from 1980 to 1990 
by 1,354,081 persons, or 45.4%; the African-American population in 
the state grew from 1980 to 1990 by 283,818 persons, or 16.8%; and 
the Anglo population in the state grew from 1980 to 1990 by 941,383 
persons, or 10.1%. The growth in Hispanic population accounted for 
a remarkable 49.1% of the increase in Texas’ total population from 
1980 to 1990. See Stip. 11.

The four counties with the largest growth in population from 
1980 to 1990 in number of persons gained are Harris, Tarrant, Dallas, 
and Bexar Counties. As noted below, the growth in the Hispanic and 
African-American population in these counties accounted for a 
significant proportion of the increase in population in each of these 
counties:

a. The total population of Harris County increased by 
408,652 persons from 1980 to 1990. The Hispanic 
population in the county increased by 275,858 persons, 
accounting for 67.5% of the growth in total population 
in the county. The African-American population 
increased by 58,674 persons, accounting for 14.4% of 
the county’s growth. See Stip. 12. According to the 
1990 Census, there are 644,935 Hispanic persons in



14a

Harris County, of whom 405,735 are of voting age. See 
Stip. 13. Furthermore, there are 527,964 African- 
American persons in the county, of whom 359,248 are 
of voting age. See Stip. 14.

b. The total population of Tarrant County increased by 
309,223 persons from 1980 to 1990. The Hispanic 
population in Tarrant County increased by 72,247 
persons, accounting for 23.4% of the growth in total 
population in the county. The African-American 
population in Tarrant County increased by 37,765 
persons, accounting for 12.2% of the county’s growth. 
See Stip. 12.

c. The total population of Dallas County increased by 
296,420 persons from 1980 to 1990. The Hispanic 
population in the county increased by 161,069 persons, 
accounting for 54% of the growth in the total population 
of the county. The African-American population 
increased by 76,343 persons, accounting for 25.8% of 
the county’s growth. See Stip. 12. In Dallas County, 
there are 362,130 African-American persons of whom 
243,918 are of voting age. See Stip. 15.

d. The total population of Bexar County increased by 
196,594 persons from 1980 to 1990. The Hispanic 
population in Bexar County increased by 128,269 
persons, accounting for 65.2% of the growth in the total 
population of the county. The African-American 
population in Bexar County increased by 13,326 
persons, accounting for 6.8% of the county’s growth. 
See Stip. 12.
Significant increases in Hispanic population occurred 

between 1980 and 1990 in several other counties:
a. The Hispanic population of Cameron County increased 

by 51,341 persons between 1980 and 1990.
b. The Hispanic population of Hidalgo County increased 

by 96,760 persons between 1980 and 1990.
c. The Hispanic population of Webb County increased by 

34,227 persons between 1980 and 1990.
See Stip. 16.



15a

B. Pertinent History Related to Redistricting in Texas
Texas did not redistrict Congressional Districts at all between 

1933 and 1957. See United States Exh. 1071 at 7. Following the 
1960 Census, the state ‘Yedistricted” by creating a new at-large 
Congressional seat. See State Exh. 23, |6 . This approach to 
redistricting allowed all incumbents’ existing districts to remain intact 
and meant that the at-large candidate had to campaign across and 
represent the entire state. Also in the 1960’s, Texas created the now 
infamous District 6 — often known as ‘Tiger” Teague’s district — 
which ran from Fort Bend County through rural east Texas into the 
southern ends of both Tarrant and Dallas Counties. See State Exh. 
41.

The 1971 round of Congressional redistricting was notable at 
least in part because of the great lengths to which the state legislature 
went to solicit the views of incumbent congressmen. The Senate 
Congressional Redistricting Subcommittee actually flew to 
Washington to meet with the Texas delegation as a group and on an 
individual basis.9 See State Exh. 23, f8. In the 1980’s, the Texas 
Legislature managed to put together a plan despite two novel facts — 
the first Republican governor elected in Texas since Reconstruction 
and the applicability of § 5 of the Voting Rights Act to Texas 
Congressional redistricting. See United States Exh. 1071 at 14; 
Plaintiff Exh. 28A (Map of 1980’s Plan C001).

Ted Lyon, a former member of the Texas House and Senate involved in 
the 1980 and 1990 redistricting battles, asserted that “[CJompactness 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. There is no reason why the State 
should now have to draw compact majority-minority districts when it has shown no 
interest over the years in drawing compact majority-white districts.” Lawson Exh. 
14, 117; see id. at Tf 12 (“Neither pretty districts nor compact districts are a 
priority in Texas, and they have not been since well before I was involved in 
districting, if ever.”).

At a minimum, however, a comparison of Plan C657 and Plan C001, the 
1980’s Congressional districting plan, strongly suggests that compactness as 
measured by a “eyeball” approach was much less important in Plan C657. This is 
especially true of the major urban counties, namely Dallas and Harris. Cf. 
Plaintiff Exh. 28A (map of Plan C001) wjth Plaintiff Exh. 34B (map of Plan 
C657).



16a

C. The 1991 Congressional Redistricting Process
l i  General Background
The Texas Constitution requires the Texas Legislature to redraw 

Congressional Districts after each Decennial Census. See Tex. Const, 
art. Ill, § 26. The Texas Legislature is a bicameral body consisting of 
the Senate and the House of Representatives. See Stip. 4. In 1991, 
the Texas Senate had 31 members, elected from single member 
districts. See Stip. 5. Of the 31 members of the 1991 Senate, 22 were 
Democrats and nine were Republicans, two were African-American, 
five were Hispanic and 24 were Anglo. All of the African-American 
and Hispanic members were Democrats. See State Exh. 1. The Texas 
House of Representatives had 150 members, also elected from single­
member districts. See Stip. 6. Of the 150 members of the 1991 Texas 
House, 93 were Democrats and 57 were Republicans, 13 were 
African-Americans, 20 were Hispanic, and 117 were Anglo. As in the 
Senate, all of the African-American and Hispanic House members 
were Democrats. See State Exh. 2.

The following committees and subcommittees of the Texas 
Legislature were involved in the task of redistricting in 1990 and 
1991: the Senate Select Committee on Legislative Redistricting, 
chaired by Senator Bob Glasgow; the House Committee on 
Redistricting, chaired by Representative Tom Uher; the Senate 
Committee of the Whole on Redistricting, chaired by Senator Chet 
Brooks, which had two subcommittees -- the Subcommittee on 
Congressional Districts, chaired by then-State Senator Eddie Bernice 
Johnson, and the Subcommittee on Legislative Redistricting chaired 
by Senator Bob Glasgow;10 and the Senate Committee of the Whole, 
chaired by Senator Chet Brooks.

The Senate Select Committee on Legislative Redistricting and 
the House Redistricting Committee held joint regional outreach 
hearings throughout the state. Specifically, the committee heard and 
received testimony from individuals and organizations concerned 
about redistricting in the following cities: Austin (February 28, 1990); 
Lubbock (March 16, 1990); Amarillo (March 17, 1990); Corpus

The staff for the Senate Subcommittee on Legislative Redistricting 
included Carl Reynolds, Chris Sharman, Shannon Noble, and Laura McElroy. See 
Stip. 27. Sharman was the subcommittee’s technician and map drawer. See
6/29/94 TR. at 3-156-58.



17a

Christi (April 6, 1990); El Paso (May 18, 1990); Midland/Odessa 
(May 19, 1990); Houston (June 1, 1990); Beaumont (June 22, 1990); 
Tyler (June 23, 1990); Fort Worth (July 13, 1990); Dallas (July 14, 
1990); Laredo (July 27, 1990); Edinburg/Harlingen (July 28, 1990); 
San Antonio (August 25, 1990); and Austin (September 28, 1990). In 
1991, the Senate Committee of the Whole on Redistricting held its 
own public outreach hearings on a more limited scale in Houston 
(April 5, 1991), Brownsville (April 26, 1991), and San Antonio (May 
1, 1991). See United States Exh. 1086.

The transcripts and/or summaries of these numerous regional 
hearings are voluminous. What role these hearings ultimately played 
in Congressional redistricting is difficult to ascertain. At least one 
Texas House member, Representative Kent Grusendorf, testified that 
the regional outreach hearings — often ill-attended by legislators — 
“essentially had no effect on the outcome of the redistricting process.” 
6/27/94 TR. at 96. Grusendorf further observed: “At the time I think 
I thought it was serious, but in hindsight I think for the most part it 
was show.” Id. Nevertheless, the state relied strongly on citizen 
participation in these hearings when it justified its plan to the United 
States Department of Justice.

The Texas Legislative Council advised the Texas Legislature on 
legal issues of concern in drafting Congressional redistricting 
legislation. See Dep. of Archer at 7. Jeff Archer, lead lawyer for the 
Council on redistricting, made presentations to committee members at 
the regional public outreach hearings on various legal issues to be 
considered in the redistricting process. See id- at 87-88. In addition, 
the Council published a series on redistricting -- dubbed the “gray 
books” — that together served as a more comprehensive statement of 
state and federal law applicable to redistricting. See Plaintiff Exhs. 
13A, 13B, 13C. The Legislative Council also developed and had 
jurisdiction over REDAPPL (a/k/a ‘Red Apple’), which was the 
primary software used in drawing maps during the Congressional 
redistricting process. See Dep. of Archer at 30.

The challenged redistricting plan (HB1) generated litigation 
before it was even passed. On May 24, 1991, Republican plaintiffs in 
Terrazas v. Slagle. 821 F.Supp. 1162 (W.D. Tex. 1993), brought an 
action under the Fourteenth and Fifteenth Amendments to the 
Constitution and the Voting Rights Act against various officials of the



18a

State of Texas and the Texas Democratic Party. In their First 
Amended Original Complaint, filed after the adoption of HB1, the 
plaintiffs in Terrazas challenged the 1991 Texas Congressional 
Redistricting Plan as unconstitutional and violative of the Voting 
Rights Act and alleged that it

sacrifices the rights of racial and political minorities to 
enhance the reelection chances of Anglo Democrat 
incumbents by fragmenting and concentrating the 
population centers of Hispanics and Republicans, 
diminishing the likelihood that candidates of their 
choice can be elected from within their communities.

United States Exh. 1005. The court in Terrazas ruled that the 1991 
Texas Congressional Redistricting Plan did not dilute the voting rights 
of racial, ethnic, or political minorities in violation of the Constitution 
or the Voting Rights Act. See Terrazas v. Slagle. 821 F.Supp. 1162 
(W.D. Tex. 1993).

The implementation of the challenged plan did increase the 
minority composition of the Texas Congressional Delegation. During 
the consideration of redistricting by the Texas Legislature in 1991, the 
Texas Congressional Delegation had 27 members, of whom 18 were 
Democrats, nine were Republicans, one was African-American, four 
were Hispanic, and 22 were Anglo. See Stips. 46-47. As a result of 
the 1990 Census, the Texas Congressional Delegation increased to 30 
members. See Stip. 48. Of the 30 members of the Texas 
Congressional Delegation elected in 1992 after the 1991 redistricting - 
- 20 Democrats and ten Republicans -- two are African-American, five 
are Hispanic, and 23 are Anglo. See Stips. 49-50.

2. Voting Rights Act Considerations
The Legislature embarked upon Congressional redistricting 

against the legal backdrop of the Voting Rights Act. As described 
supra, the Texas Legislative Council through the “gray books” 
attempted to summarize Voting Rights Act concerns for the Texas 
Legislature." Further, Jeff Archer, the Council’s lead lawyer on

In reference to a statement made in the “gray books” that “the Gingles 
standard does not appear to require a majority district to be drawn if the district 
would be extremely elongated or otherwise bizarre in shape,” Jeff Archer testified



19a

redistricting, frequently testified before the Legislature’s committees 
on the Voting Rights Act requirements. For instance, Archer told the 
Senate Committee of the Whole on Redistricting that “mere lack of 
proportional, representation is not enough” to establish a violation of 
the Voting Rights Act, but is “strong evidence.” Plaintiff Exh. 16 at 
10.

The Legislature also heard from concerned citizens and 
organizations about the Voting Rights Act considerations relevant to 
Congressional redistricting. For example, George Korbel, director of 
litigation for Texas Rural Legal Aid and former regional director of 
the Mexican-American Legal Defense Fund, testified before the Senate 
Committee of the Whole on Redistricting that ‘Vnless there is [sic] at 
least two additional Hispanic Congressional districts and one 
additional Black Congressional district, . . . the reapportionment of the 
Congress is not going to pass the Department of Justice.” United 
States Exh. 1086 (4/5/91).

Once the redistricting legislation had passed, the Voting Rights 
Act considerations in HB1 were set forth in a September 1991 
attachment to the State’s § 5 submission entitled Narrative of Voting 
Rights Act Considerations in Affected Districts prepared by the Texas 
Congressional Redistricting Staff. See Plaintiff Exh. 4C. As the 
document sets forth in its introduction, the Narrative functions to 
“give an overview of the efforts made to address Voting Rights Act 
concerns.” Id. at 1.

The Narrative begins by noting the legislative agreement that the 
three new Congressional seats apportioned to Texas

should be configured in such a way as to allow 
members of racial, ethnic, and language minorities to 
elect Congressional representatives. Accordingly, the 
three new districts include a predominantly black

that “those terms are to some extent attempts to explain to a person who’s not 
familiar with this [redistricting] what compactness might mean.” He noted that 
the statement was made in the context of a plaintiff in a redistricting case under 
section 2. If the best the voters alleging the violation could do was to show that 
the legislators could have connected South Texas with Houston, and then gone 
over to Dallas, in his view, the State is probably not under any obligation and is 
not violating the law by drawing some other forms of districts. See Dep. of Archer 
at 192-193.



20a

district drawn in the Dallas County area and 
predominantly Hispanic districts in the Harris County 
area and in the South Texas region. In addition to 
creating the three new minority districts, the proposed 
Congressional redistricting plan increases the black 
voting strength of the current District 18 (Harris 
County) by increasing the population to assure that the 
black community may continue to elect a candidate of 
its choice.

Id After making these initial observations, the Narrative analyzes the 
three new minority districts as well as District 18 in greater detail.

The Texas Legislature agreed that a new “Safe” African- 
American district should be drawn in Dallas County.12 13 See id. at 2. 
The African-American community in Dallas County insisted on a 50% 
total African-American population for the district “Which the 
community felt was necessary to assure its ability to elect its own 
Congressional representative without having to form coalitions with 
other minority groups.” Id. Meeting the threshold 50% figure meant 
that more compact alternative proposals for District 30 had to be 
rejected .'3 See id.

Texas legislators were aware that the failure to draw an 
African-American majority district in Harris County in 1991 might be 
interpreted as retrogression under Section 5 of the Voting Rights Act. 
See 6/30/94 TR. at 4-31; United States Exh. 1047. Therefore, in 
order to keep District 18 as a “safe” African-American district, 
“additional black population was taken from adjacent districts thereby 
increasing the total African-American population to 50.9% and

The agreement on Dallas County traversed party lines. Republican 
House member Kent Grusendorf testified that fairness and the Voting Rights Act 
dictated that African-American voters should have a district in Dallas in which 
they could elect a candidate of choice. See Dep. of Grusendorf at 47
13 r

Creation of a “safe” African-American district in Dallas County 
obviously impacted the other districts in Dallas and Tarrant Counties. The 
Narrative briefly discusses why the splitting of the African-American community 
in Tarrant County between Districts 12 and 24 does not amount to dilution of that 
minority community. See id. at 3.



21a

decreasing the total Hispanic population to 15.3%.”14 Plaintiff Exh. 
4C at 5. The remaining Hispanic population was placed in District 29 
-- the new “safe” Hispanic district -- consisting of a 60.6% Hispanic 
population and a 10.2% African-American population. See id. The 
Narrative concludes that the changes in District 18 and the 
configuration of District 29 “result in the maximization of minority 
voting strength for this geographical area.” Id.

In the heavily Hispanic South Texas area, the Legislature faced 
no major problems concerning minority voting strength or adjustments 
of population totals. See id. District 28 — the new “Safe” Hispanic 
district in South Texas -- was drawn with the constant input of the 
minority leadership in Bexar County and the Rio Grande Valley. See 
jd. The location of District 28 in the northern portion of South Texas 
was determined in part by the historical north-south configuration of 
Congressional Districts 15 and 27. This was the result of attempts to 
remedy a January 29, 1982 Section 5 objection which expressed 
concern that the original east-west configuration of Districts 15 and 
27 resulted in packing of the Hispanic population. See United States 
Exh. 1065 at 9; 6/29/94 TR. at 3-169.

a. Racial Polarization
In configuring Congressional District 30 in Dallas County, the 

African-American community sought 50% total African-American 
population as the minimum necessary to assure that a candidate of 
choice would be elected. The 50% figure was deemed significant 
because “[tjhere is little evidence of coalition voting between blacks

Harris County Senator Rodney Ellis described the value of majority- 
minority districts such as District 18:

Majorityf-minority] districts are important to provide 
opportunities for minorities to elect candidates of their choice. 
Democracy cannot function at its best when whole groups are 
excluded or separated from the political process. Majority- 
minority districts offer people whose philosophies have not 
always been represented a chance to get into the game. The 
districts do not ensure that minorities will win seats. They 
ensure that their viewpoints will be represented. Often these 
viewpoints are better represented by a minority, but not always.

Lawson Exh. 7, f4.



22a

and Hispanics in Dallas County” and reaching the threshold 50% 
would obviate any need to form coalitions. Plaintiff Exh. 4C at 3.

In Harris County, University of Houston political scientist Dr. 
Richard Murray observed that

the political alliance that had been forged between 
blacks and Hispanics in the 1960’s began to break 
down. Open electoral conflicts became more common. 
Relations were especially strained in 1989 when, in a 
contest for an open at-large seat on Houston’s city 
council, and [sic] African American, Sheila Jackson 
Lee, upset the favored Hispanic, former city controller 
Leonel Castillo. Hispanics returned the favor in 1991 
when Gracie Guzman Saenz unseated a black 
incumbent in another at-large election. And in a hard- 
fought mayoral race in 1991, African Americans, 
rallied behind black Texas Representative Sylvester 
Turner, given [sic] him 97% of their votes in a runoff. 
Hispanics supported the Anglo winner, Bob Lanier, by 
a nearly three to one margin.

Lawson Exh. 26 at 15. This breakdown of past coalition prompted 
Hispanic strategists to argue that Hispanics and African-Americans 
should not be combined in a new Harris County Congressional 
district. See id. As Houston City Councilman Ben Reyes testified at 
an outreach hearing held in Houston, combining minority groups in 
nearly equal numbers in a new Harris County district would be the 
‘Svorst scenario” because “they will vote for members of their own 
ethnic group, making it more likely that a non-minority candidate will 
win.”15 Plaintiff Exh. 15Hat 18.

In general, some racial or ethnic polarization occurs in majority- 
minority districts in Texas. See Plaintiff Exh. 36 at 23-27. The 
analysis of Dr. Allan J. Lichtman, an expert for the State of Texas, 
concluded that Anglos usually bloc-voted against Hispanic candidates

The testimony of Harris County Senator Rodney Ellis is consistent with 
the view that in Harris County African-Americans and Hispanics may not form 
political coalitions. See Lawson Exh. 7, ^19 (”[T]he candidate of choice of the 
African-American community will often not be the candidate of choice of the 
Hispanic community.”)



23a

in the majority-Hispanic districts. In each of four categories, a mean 
of 21% or fewer Anglo voters voted for Hispanic candidates. See 
State Exh. 14 at 21 (Table 5). For the African-American majority 
districts, Dr. Lichtman similarly concluded that Anglos usually bloc 
voted against African-American candidates. In each of four 
categories, a mean of 34% or fewer Anglo voters voted for African- 
American candidates. In all categories but the legislative (which 
included only one election for each district), a mean of 25% or fewer 
Anglo voters voted for African-American candidates. See id. at 22. 
Dr. Ronald Weber, an expert for the plaintiffs, conceded some racial 
or ethnic polarization, but concluded that it is ‘hot legally or 
politically consequential.” Plaintiff Exh. 36 at 27. 

b. History of Discrimination
Texas has a long, well-documented history of discrimination that 

has touched upon the rights of African-Americans and Hispanics to 
register, to vote, or to participate otherwise in the electoral process. 
Devices such as the poll tax, an all-white primary system, and 
restrictive voter registration time periods are an unfortunate part of 
this State’s minority voting rights history. See United States Exh. 
1065 at 3; State Exh. 17 at 6. The history of official discrimination in 
the Texas election process — stretching back to Reconstruction — led 
to the inclusion of the State as a covered jurisdiction under Section 5 
in the 1975 amendments to the Voting Rights Act. Since Texas 
became a covered jurisdiction, the Department of Justice has 
frequently interposed objections against the State and its subdivisions. 
See United States Exh. 1095.

3. Incumbents’ Interests
As has historically been the case, Congressional incumbents 

were actively involved in the redistricting process. The Texas 
Democratic Congressional Delegation formed a redistricting 
committee which began work in late 1989 or early 1990. See Lawson 
Exh. 3, |4 . Congressman Ron Coleman, a Democrat from El Paso 
and head of the Redistricting Committee, asked Democratic 
incumbents what areas they wanted to represent; to the extent their 
preferences overlapped, Coleman mediated between incumbents. See 
id. The committee’s “overriding objective,” however, was 
incumbency protection. Id. at 1)10.



24a

The Delegation played a significant role in determining the 
configuration of the Congressional districts, developing their own 
alternative plans and presenting those plans to state legislators. See 
Lawson Exh. 3, [̂9. As Congressman Coleman observed: ‘We drew 
our own plans and presented them to the Legislators, and various 
members of the Delegation met with [Legislators in Austin to discuss 
the incumbents’ needs and preferences. The Delegation was definitely 
a force in the process.” Id.

Not surprisingly, Republican incumbents were active in the 
redistricting process as well. For instance, Congressman Joe Barton 
urged the joint redistricting committees to protect as many incumbent 
congressmen as possible. See Plaintiff Exh. 15H at25. In short, as a 
general rule, incumbents sought to influence the Legislature to draw 
districts that would maximize their chances for reelection. 
Furthermore, members of the Legislature openly acknowledged the 
role of incumbents on the redistricting process. See United States 
Exh. 1092 (Senate Committee of the Whole, transcript dated 8/24/91, 
at 17) (statement of Senator Eddie Bernice Johnson: The incumbents 
‘have practically drawn their own districts. Not practically, they 
have.’); Plaintiff Exh. 23 at 21 (statement of Representative Uher: 
‘Well, I think that not just a congressman but a large majority of the 
Congressional delegation have endorsed the basic plan that we started 
with, and that’s the reason that we’re still adhering to that basic plan, 
is because of a majority of support of the Congressional delegation 
and not just necessarily one individual congressman’s support.’).

Incumbency protection would by definition at minimum require 
that incumbents not be paired against each other. Plan C657 reflects 
a successful effort to avoid this result. See Stip. 52. As shown by the 
various maps making up State Exh. 9B, incumbent residences 
repeatedly fall just along district lines. Congressman Lamar Smith’s 
residence lies in an inlet in Bexar County in the last voter tabulation 
district (“VTD’) before his Congressional District 21 ends at the 
northern boundary of Congressman Henry B. Gonzales’ District 20.16 
Congressman Gonzales’ residence in turn lies in the last VTD before 
his district ends at the southern boundary for District 21. In Dallas 
County, Congressman Frost’s residence lies in a small indentation

For our purposes, a VID is the functional equivalent of a voting precinct.



25a

jutting into a part of District 30, and Congressman Bryant’s residence 
lies just barely on the other side of a dividing line between District 5 
and District 30. Finally, in Harris County, small indentations permit 
Congressman Jack Fields’ residence to remain in District 8 and 
Congressman Andrews’ residence to remain in District 25.

At least as measured by 1992 election results, the incumbents 
experienced great success in redistricting to assure incumbency 
protection. Each incumbent member of Congress — except Albert 
Bustamante, an Hispanic Democrat who represented District 23 — was 
reelected to Congress in 1992. Bustamante was defeated in the 1992 
General Election by Henry Bonilla, an Hispanic Republican. See 
Stip. 51. Additional specific instances of incumbent interests will be 
detailed infra in the analysis of particular Congressional Districts.

4. Use of Racial Data
As with incumbency interests, particular instances in which 

racial data were used in redistricting are hereafter detailed in 
discussing individual Congressional Districts and their shapes. 
However, some general observations about racial/ethnic information 
widely available to legislators are appropriate.

Redistricting data were available to all members of the 
Legislature and their staffs as well as to any groups and individuals 
sponsored by members of the Legislature. See Plaintiff Exh. 13D at 1. 
The primary software used for map drawing in Congressional 
redistricting — REDAPPL — was readily available on work stations in 
the redistricting offices of the Texas Legislative Council. See id.

The feature of REDAPPL of most interest is the system’s ability 
to provide racial and ethnic data at both the VTD and block level. 
REDAPPL software allowed the operator to work at the VTD level 
and call up racial/ethnic information in addition to other types of 
information such as population, voting age population, incumbent 
location, and street names. See 6/29/94 TR. at 173. Election contest 
information was available at the VTD level, see id., but REDAPPL 
did not allow the operator to work with multiple elections 
simultaneously on a screen.17 Indices of partisanship such as the 
NCEC Index, prepared at a national level for the use of Democrats,

The REDAPPL software did not itself contain electoral databases, but 
election information was available through the State’s mainframe computer.



26a

involved multiple elections, but they could not be accessed on a 
REDAPPL screen. See id. at 175.

The critical feature of REDAPPL is that it allowed the operator 
to “split” a VTD and work on a block-by-block level. See id- at 176. 
Racial/ethnic breakdown was available on a block level on 
REDAPPL. See id. at 177. By contrast, no election contest
information was available at the block level on the REDAPPL 
software.18 See id. In sum, REDAPPL allowed the user to work with 
racial/ethnic data at even the block level; election information was 
simply unavailable at that level through REDAPPL.

If the Legislature intended to allocate voters on the basis of 
race, REDAPPL certainly provided a readily available, efficient 
means of doing so. In fact, because the software constantly displayed 
racial and ethnic data on the screen anytime an operator used the 
system, a would-be map drawer would affirmatively have to ignore the 
data. See 6/30/94 TR. at 81. But as Chris Sharman, the principal 
computer technician/map drawer involved in Congressional 
redistricting, testified:

The problem is when you draw on this computer, it 
tells you the population data, racial data. Every time 
you make a move, it tabulates right there on the 
screen. You can’t ignore it.

Id-
5. Congressional District 30
Describing the boundaries of Congressional District 30 is no 

easy task. Even the State of Texas has difficulty analyzing the 
contours of this extraordinarily oddly-configured, sprawling district. 
See Appendix (Map of District 30). Dan Weiser, an expert employed 
by the United States, prepared a map isolating Congressional District 
30 and breaking it down into a “core” and no less than seven 
segmented portions. See State Exh. 33. Even under the State’s 
analysis, the “core” of District 30 accounts for only 50% of the 
district’s voting age population. See id.

Election information at the block level was available — if at all — only 
through the personal knowledge of Congressional incumbents and their staff. 
6/29/94 TR. at 177-78.



27a

The core” of the district includes what is generally known as 
South Dallas, Fair Park, and portions of South Oak Cliff and Pleasant 
Grove in southeast Dallas. See United States Exh. 1070 at 9 
(declaration of Dr. Paul Waddell). The district then moves northeast 
from its core and splits into a northern and a western extremity. See 
id. at 10. The western extremity proceeds to incorporate much of 
West Dallas before it branches off to the north and south. The 
southern portion gathers the “older core” of Grand Prairie, while the 
northern portion moves ‘through mostly undeveloped land between 
Irving and Arlington, and into the DFW Airport.” Id at 11. The 
northern extremity includes a portion of the district to the northeast of 
the Central Expressway characterized as “particularly complex” by 
the State’s land use expert, Dr. Paul Waddell. Id. at 12.

As even a cursory glance at the map of District 30 in isolation 
reveals, the district can really only be described here in the most 
general terms as its meanderings are too complicated and frequent to 
detail. See State Exh. 33. Thus, the remainder of the discussion of 
Congressional District 30 in this portion of the opinion will focus 
exclusively on the intent of the Texas Legislature in drawing the 
convoluted boundaries of District 30.

According to the Narrative of Voting Rights Act Considerations 
in Affected Districts, an attachment to the State’s § 5 submission, the 
Texas Legislature agreed that a “safe” African-American 
Congressional District would be drawn in Dallas County.19 See 
Plaintiff Exh. 4C at 1-2. The African-American community insisted 
upon a 50% total African-American population in order to assure a 
“safe” African-American district in Dallas County. See id. at 2. The 
community succeeded, as Congressional District 30 configured under 
Plan C657 had a total African-American population of 50.0% and a 
total Hispanic population of 17.1%. See id.

Newspaper articles appearing statewide before and during the 
redistricting process confirm the view that the Legislature had early on agreed that 
Dallas County would get a new minority — namely African-American — district. 
See, e ^ ,  United States Exh. 1012 (“Redistricting Mostly Pluses for Democrats”, 
Austin American-Statesman 4/21/91); United States Exh. 1017 (“Minority 
District Foreseen for County”, Dallas Morning News. 12/27/90); United States 
Exh. 1038 ( ‘Minority Seat May Spell Peril for 3 Congressmen”, Dallas Times 
Herald. 5/5/91).



28a

The trial testimony of District 30 Congresswoman Eddie Bernice 
Johnson in Terrazas v’. Slagle — a previous challenge to C657 under 
the Constitution and Voting Rights Act — is consistent with the plainly 
stated conclusion in the Narrative that the Texas Legislature intended 
to create a safe African-American district in Dallas County. In 
response to a question about whether a dominant goal existed in 
redistricting Congressional Districts in Dallas County, Johnson -- who 
at the time of redistricting chaired the Senate Subcommittee on 
Congressional Districts and was a representative of Dallas County in 
the Texas Senate — replied:

Yes. I had made a commitment to that Black 
community, that they would have a safe district, as 
had been mandated and expected for a number of 
years, and I did not intend to go home without that.

Plaintiff Exh. 8B at 231.
In explaining the boundaries of the district, Congresswoman 

Johnson testified that the district was drawn this way as a result of 
two competing tensions — namely that the district was intended to be a 
“safe” African-American district and the African-American population 
in Dallas County had over time dispersed from its previous “core” 
location. The following exchange is particularly informative:

Q.: When you say they deteriorated, what do you mean in
that respect, Mrs. Johnson?

A: Well, the population had moved -- started to move out;
there were lot of boarded up houses. The whole core 
of that area was moving out. There had been a 
deterioration of about 40 to 45 to 50 percent in certain 
areas of voters in a 10 year period. In addition to that, 
there were a large number of persons there who were 
felons, who could not vote. So, though they were over 
18, it substantially deteriorated their voting strength. 
We then attempted to locate where that population 
shifted to. And in attempting to trail that — to trace 
that population, we could see that it was moving outer 
and around. It was going into the Grand Prairie area



29a

and into the Pleasant Grove area. And then there were 
pockets of persons who had lived here, and then this 
was moved —

Q: Who lived in the Black core district?

A: — who lived in the core district, and also in the north
end of Dallas County, into Collin County. Those were 
performing voters who expressed a desire to be in the 
minority district. . . .

Q: Well, to the extent then that we see fingers of the . . .
district going off in the north — north Dallas County, 
and even into southern Collin County, I suppose, we 
are talking about these are Black migration areas that 
you were attempting to bring into the district; is that 
correct?

A: That is correct.

Id. at 233-35. In sum, Congresswoman Johnson testified in Terrazas 
that the shape of Congressional District 30 — including the various 
‘Fmger’-like extensions that are common northeast of the Central 
Expressway -- can be understood as a conscious effort to pick up 
African-American voters who had dispersed from the core area.20

When asked about the influence of incumbent Congressmen 
Martin Frost and John Bryant on the shape of District 30,

It was widely acknowledged that then-Senator Johnson had enormous 
authority in drawing the boundaries of District 30 as she saw fit:

[A]t some point the lieutenant governor made it clear that he 
wanted Senator Johnson to draw her district and that the Senate, 
as far as the lieutenant governor was concerned, was going to 
support what she wanted to do in Dallas. And at that point it 
came down to drawing her district, or the district that she would 
run in, and working with accommodating Bryant on the east side 
and Frost more or less on the west side to — to accomplish what 
they felt that they needed to do.

Dep. of Reynolds at 23.



30a

Congresswoman Johnson testified that her sole focus in drawing the 
district was on looking out for African-American voters:

Q: All right. Now, was anything done in the course of the
creation of this map, Mrs. Johnson, that you could tell 
us about, to aid Congressman Bryant or Congressman 
Frost? Or did this map just happen this way?

A: I got beat up so many times because I wouldn’t do
anything but look out for Black voters.

Id. at 247. Johnson -- the principal architect of District 30 — 
proceeded to testify that in drawing the district she was able to pick 
and choose the “performing” African-American voters she wanted to 
include, leaving the “nonperforming” African-American voters for 
Bryant and Frost.21 See id. at 248.

Representative Fred Blair’s testimony at trial in Terrazas is 
consistent with Congresswoman Johnson’s view expressed in that 
same case that the shape of the district can be explained as an effort to 
locate and select ‘performing” African-American voters in order to 
guarantee the African-American community a safe African-American 
seat. Blair — a Texas House member from Dallas -- observed that 
District 30

was crafted in a manner that we sought to pick up 
those precincts, those communities, those areas that 
we thought were stable areas that would present an 
opportunity to elect an African-American. . . . [I]n 
looking at developing a Congressional Plan, we 
wanted to find those areas that we thought were stable 
areas. Homeowners were very important to us. We 
wanted to make sure we included a significant number 
of those within a district because just to lump in 
African-Americans and say we have an African-

Congressmen Frost and Bryant had a significant part of their old districts 
-  24 and 5 respectively — removed to draw the safe African-American seat. As 
Chris Sharman noted: “[A] good portion of the core of District 30 was in
Congressman Bryant’s district prior, and the other portion was in Congressman 
Frost’s prior to redistricting . . . .” June 29, 1994 TR. at 3-187.



31a

American district that may have a number of 
apartments where there is a lot of movement going on, 
we thought we had to be very sure, very careful, in 
drawing lines so that we could create a district that we 
thought was winnable with a 50 percent.

Plaintiff Exh. 8D at 108-09. Furthermore, his testimony directly 
linked this effort to find “stable areas” with the irregular shape of the 
district. See id. at 109.

The testimony submitted in this racial gerrymandering case is at 
first glance starkly at odds with the explanation for the district’s 
severely contorted boundaries offered in Terrazas, which was of 
course not a racial gerrymandering case. The most prominent 
example is the testimony offered by Congresswoman Johnson in this 
case.

Unlike Terrazas, where she did not acknowledge that 
Congressmen Frost and Bryant had a role in determining the district’s 
boundaries, Congresswoman Johnson testified for purposes of this 
case that District 30 did not include some portions of the area 
encompassed by her senate district because the incumbent 
congressman in District 5 -  John Bryant -  wanted the area: “[Five] 
wanted voters that they had previously represented, just as 24, just as 
6, just as 5, just as everybody that had a stake in it. Everybody 
wanted as much of what they had previously represented as possible 
on both sides of the political spectrum.” Dep. of Johnson at 82. 
Johnson further testified that a more compact African-American 
majority district could have been drawn in the Dallas area if she did 
not have to address the concerns of incumbents.22 See Dep. of 
Johnson at 130-32, 142.

Other testimony in this case emphasized the role of 
incumbents in the shaping of District 30’s bizarre boundaries. Ted 
Lyon, a former member of the Texas House and Senate involved in 
Congressional redistricting in 1980 and again in 1990, described in 
general terms the active role of incumbents in drawing District 30:

Congresswoman Johnson in fact drew a much more compact African- 
American majority district in Dallas in her Plan C500. See Plaintiff Exh. 29. 
That plan drew much opposition from incumbents and was quickly abandoned. 
See Part IH. E. infra.



32a

In focusing on the incumbent congressmen in the 
Dallas area, it became clear almost immediately that 
there would be a fight between Congressmen Frost and 
Bryant, on the one hand, and Senator Eddie Bernice 
Johnson, on the other, over the African-American 
voters who had previously resided in Districts 3 [sic] 
and 5. Frost and Bryant were not concerned about the 
race of these voters. They just wanted to hold onto 
enough Democrats to assure re-election. Senator 
Johnson was trying to take both minority and 
Democratic voters from what had previously been 
Districts 24 and 5 in order to construct a majority- 
black district that would satisfy the Voting Rights Act.
Conflict arose, of course, because Democratic 
populations and African-American populations are 
often the same. The redistricting process became a no 
holds barred political fight, and fangs were out.

Lawson Exh. 14,18.
Lyon also testified about the specific impacts of incumbency 

protection on the contours of the district. For instance, he attributed 
the “irregular” shape of District 30 in Oak Cliff and Grand Prairie to 
fighting between Frost and Johnson eventually settled by essentially 
splitting the areas between Districts 24 and 30. See id. at f9. Lyon 
also attributed in part some of the irregularity in the district’s eastern 
shape to incumbency protection -- namely keeping Congressman 
Bryant’s East Dallas neighborhood in District 5.23 See id- at HI 1.

Ted Lyon was certainly not the sole source of additional support for the 
proposition that incumbency protection played a role in the boundaries of District 
30. Representative Grusendorf testified that the odd configuration of District 30 
was the result of protecting Frost and Bryant. Dep. of Grusendorf at 41. And Carl 
Reynolds, a staff member of the Senate Subcommittee on Legislative Redistricting, 
testified that there was a conflict over the Dallas area because

Frost and Bryant split Dallas County and we were forcing 
another district right down in-between the two of them and 
pushing them outward, and so then naturally there were 
neighborhoods that one or the other had represented and there 
were people that — you know, there were people that they had



33a

Apparently, Democratic incumbents in Dallas County were quite 
interested in keeping African-American voters in their newly 
configured districts. Congresswoman Johnson testified that
Congressman Frost was ‘looking for voters [in the urban areas of 
Dallas county] that were going to vote in the Democratic Primary, and 
clearly he was more likely to be sure of it if they were black.” Dep. of 
Johnson at 129-130. Quite telling is an August 28, 1991 letter written 
by then-Senator Johnson to John Dunne, then the head of the Civil 
Rights Division at the Department of Justice, in which the Senator 
requested a review of proposed Districts 12 and 24 and their 
potentially dilutive effect on the minority community in Tarrant 
County. See Plaintiff Exh. 6E6. In the first paragraph of this letter, 
Senator Johnson explains why African-American voters were so 
attractive to incumbents fighting over district boundaries:

For primary elections, approximately 97% of the total 
votes cast by Blacks in the Dallas/Fort Worth 
metroplex area are cast in the Democratic primary.
Because of the consistency of this voting pattern, 
Democratic incumbents generally seek to include as 
many Blacks as possible into their respective districts. 
Throughout the course of the Congressional 
redistricting process, the lines were continuously 
reconfigured to assist in protecting the Democratic 
incumbents in the Dallas/Fort Worth metroplex area 
by spreading the Black population to increase the 
Democratic party index in those areas.

Id. In other words, incumbent protection in Dallas County involved 
the allocation of African-American voters among the districts.

Again in contrast to her prior Terrazas testimony, 
Congresswoman Johnson described in her deposition in this case a 
variety of nonracial factors that went into the drawing of District 30’s 
boundaries. For instance, she testified that the district mappers ‘tnade 
an effort to put communities of interest together in this district. We

represented and that they wanted to continue to represent and 
they had to work out the lines to do that.

Dep. of Reynolds at 24-25.



34a

made an effort to identify voters that would support the same kinds of 
major issues in the same manner, notwithstanding their color.” Dep. 
of Johnson at 32. Johnson further asserted that she and her staff 
considered the result of certain votes in deciding whom to include in 
District 30:

We looked at a couple of referenda votes for the 
Dallas area rapid transit system. We also looked at a 
bond election vote for the Dallas independent school 
district trying to determine where there might be more 
communities of interest, where there would be support 
that would go beyond the color of the candidate.

Dep. of Johnson at 144.
Other testimony ostensibly supports Congresswoman 

Johnson’s suggestion that “communities of interest” were put together 
in District 30, In a report dated June 24, 1994, Dr, Paul Geisel, an 
expert for the state, proclaims that District 30 represents a community 
of interest that shares “one economy, one transportation system, one 
media/communications system and one higher educational system.” 
State Exh. 18 at 7.

Dr. Paul Waddell, the United States’ land use expert, in a 
report prepared June 21, 1994, attempts to explain the boundaries of 
District 30 in nonracial land use terms. First, most of the “arms and 
fingers” of Congressional District 30 follow both natural and 
commercial land use boundaries, including industrial belts, retail 
areas, the Trinity River, and freeway corridors. See United States 
Exh. 1070 at 8. Second, District 30’s extremities encompass within 
their boundaries little single-family land use, but “clusters of multi­
family land use.” Id. Third, the extremities of the district incorporate 
“substantial land use areas that are office, industrial, retail, or airport 
land use areas, even when these areas do not clearly serve as a bridge 
to other residential areas.” Id. Fourth, the district boundaries do not, 
upon close analysis, divide single family residential neighborhoods, 
but in fact encompass ‘kiulti-family areas and avoid established single 
family neighborhoods.” Id.

Neither Dr. Waddell nor Dr. Geisel suggested that the 
Legislature had these particular “communities of interest” in mind 
when drawing the boundaries of District 30. While Fred Blair’s



35a

testimony in Terrazas suggests that the map drawers preferred to 
include home-dwellers over apartment-dwellers, an assertion at odds 
with Dr. Waddell’s conclusions, the record is otherwise void of 
support for any land use thesis. In sum, both reports undoubtedly 
accurately describe the district, but are more properly seen as post hoc 
descriptions of the boundaries.

6. Congressional Districts 18 and 29
According to the Narrative of Voting Rights Act Considerations 

in Affected Districts, the Legislature sought to create a “safe” 
Hispanic seat in the new Harris County Congressional District 29 as 
well as increase African-American voting strength in District 18 in 
order to assure that the African-American community could continue 
to elect a “candidate of its choice.” Plaintiff Exh. 4C at 1. Prior to 
redistricting in 1991, District 18 was underpopulated by 116,549 
people and was made up of 35.1% total African-American population 
and 42.2% total Hispanic population.24 See id. at 5. To “remedy” 
this situation, additional African-American population was taken from 
adjacent districts, thereby increasing the total African-American 
population to 50.9%. The remaining Hispanic population was shifted 
over to the new Hispanic District thereby decreasing the total 
Hispanic population in District 18 to 15.3%. See id. For its part, 
District 29 consists of 60.6% total Hispanic and 10.2% total African- 
American population. See id.

An appreciation for the precision with which this segregation 
of Hispanics and African-Americans in Harris County was carried out 
may not be had without a detailed look at the map of District 18 based 
on African-American population distribution by Census block and the 
map of District 29 based on Hispanic population distribution by 
Census block. See Plaintiff Exh. 55 and 53. The detail allowed by 
these maps highlights in District 18, for example, the “many narrow 
corridors, wings, or fingers that reach out to enclose black voters, 
while excluding Hispanic residents.” Richard H. Pildes & Richard G. 
Niemi, Expressive Harms. “Bizarre Districts.” and Voting Rights: 
Evaluating Election-District Appearances After Shaw- v. Reno, 92 
Mich. L. Rev. 483, 556 (1993) (hereinafter, ‘Pildes & Niemi’).

That District 18 — a safe African-American district — ended up having an 
Hispanic plurality in total population is not surprising given the explosive growth 
of the Hispanic community in Harris County over the 1980’s. See part II.A. supra.



36a

District 29’s border is similarly characterized by fingers reaching out 
to enclose Hispanics. In fact, these districts are so finely “crafted” 
that one cannot visualize their exact boundaries without looking at a 
map at least three feet square.25

The geographic dispersion of the various minority 
communities within Harris County is definitely an obstacle in drawing 
a majority-minority district each for African-Americans and 
Hispanics. As Dr. Ronald Weber, the main expert for the plaintiffs, 
testified at trial, “JT]he Hispanic community is dispersed in two 
quadrants about 10:00 or 11:00 o’clock on [Plaintiff Exh. 53] . . . and 
about 5:00 o’clock” while the African-American community has three 
centers of concentration, “one as [sic] approximately 10:00 o’clock 
[on Plaintiff Exh. 55], which is to the west of the Hispanic 
concentration, one at about 1:00 o’clock, which is another African 
American concentration, and then finally at about 6:00 and 7:00 
o’clock.” 6/28/94 TR. at 263. This dispersion helps account for the 
fact that District 29 cuts through the center of Houston to join the two 
Hispanic quadrants and that District 18 snakes around the city to 
capture the various African-American concentrations. See id. at 264; 
Appendix (Maps of Districts 18 and 29); see also Plaintiff Exhs. 
34H8, 34H9 (small maps).

In the earliest stages of the Congressional redistricting 
process, state Democratic and Republican leaders rallied behind the 
idea of creating a new Hispanic safe seat in Harris County while 
preserving the safe African-American seat in District 18.26 Also early 
on in the redistricting process, Texas House member Roman Martinez, 
an Hispanic Democrat from Houston, announced a plan for drawing

The maps in the appendix to the opinion roughly outline the districts’ 
severely convoluted boundaries. See Appendix (Maps of Districts 18 and 29).

The chairman of the Texas Democratic Party, Bob Slagle, told the House 
Redistricting Committee that an Hispanic Congressional district could be drawn in 
Harris County while keeping District 18 an African-American district and leaving 
District 25 with a “significant” minority population of about 40%. See United 
States Exh 1058 (“Hispanic District Feasible, House Committee Hears”, Houston 
Post. 4/2/91). The chairman of the Texas Republican Party, Fred Meyer, 
expressed his support for efforts to draw the Hispanic district in Harris County, 
calling plans for such a district ‘“ possible, feasible, responsible and fair.’” United 
States Exh. 1061 (“Hispanic Congressional District for Harris County Proposed”, 
Dallas Morning News. 3/24/91).



37a

the new Hispanic district while maintaining majority-minority District 
18 and preserving the ‘Democratic nature” of Congressional District 
25. See Plaintiff Exh. 9. Representative Martinez — one of two 
Hispanic members of the Texas House from Harris County — would 
play a major role in the drawing of District 29, as would another 
Congressional aspirant, then-State Senator Gene Green.27 In the press 
release announcing his plan, Martinez promised that

what Houston’s Hispanic community has long worked 
for -- its own Congressional district — will be 
accomplished. My hope is that it will be accomplished 
through the legislative process as we present this plan 
to both the House and the Senate in the State 
Legislature. But if this district as we envision it is not 
a product of the legislative process, we will enlist the 
help of the U.S. Department of Justice and the courts 
under the jurisdiction of the Voting Rights Act.

Id
Representative Martinez’s testimony at trial in Terrazas v, 

Slagle is consistent with the analysis offered in the Narrative on the 
creation of the two majority-minority districts in Harris County. As 
the primary architect of the lines in Harris County, Martinez defined 
his goals in redistricting:

Again, the first goal was to assure no retrogression for 
the 18th Congressional District, insuring that that was 
maintained as an African-American district. And then, 
secondly, it was a very important goal as a Hispanic 
representative to insure that we created for the first 
time a Congressional seat for the Hispanic community 
to elect the first Hispanic Congressman.

Both Senator Green and Representative Martinez had Congressional 
aspirations and, consequently, wanted the new Hispanic district to be based around 
their legislative districts. See Pep, of Martinez at 13-14, 16-18. Green eventually 
won the race for the District 29 seat in a bitter contest against longtime Houston 
City Councilman Ben Reyes.



38a

Plaintiff Exh. 8A at 134, 146. These “goals” took hold in the 
Legislature. For example, Carl Reynolds, a staff member of the 
Senate Subcommittee on Legislative Redistricting who was actively 
involved in Congressional redistricting, observed that “[t]here was an 
understanding that that new district [in Harris County] would be a -  I 
think a 60 percent or more Hispanic district.”Dep. of Reynolds at 62.

At least two other factors influenced the boundary drawing of 
the Harris County districts.28 First, to the extent possible, 
Congressman Mike Andrews’ district -- Congressional District 25 — 
was to be kept intact and Democratic. See Dep. of Martinez at 21. 
Ed Martin, Executive Director of the Texas Democratic Party, 
testified that a suggestion by Congressman Craig Washington that 
District 18 be reconfigured based on the shape of African-American 
majority Senate District 13 was unacceptable ‘because it would have 
taken a large chunk out of District 25.”29 Lawson Exh. 15, fl8 . 
Congressional District 25 was not spared in the redistricting process, 
however, as it eventually lost population to District 18 in southern 
Harris County thereby necessitating the additional population from the 
southwest, the Baytown area, and north of the Ship Channel See 
6/30/94 TR. at 445.

The second factor was the desire of Senator Gene Green to 
draw a Congressional district in which he could run, namely one 
which included as much of his Senate district as possible. See Dep. of 
Martinez at 22. Not surprisingly, Senator Green was not entirely 
successful in influencing the map drawing. For instance, an 
alternative to the present configuration of District 29 would have 
brought District 29 around the northeast portion of Harris County. 
See State Exh. 15 at 4. This alternative included areas perceived as 
more favorable to Senator Green. See id. As per Representative

Senator Rodney Ellis, Democrat from Houston, observed that to a great 
extent District 18 was shaped by the districts around it,” Lawson Exh. 7 at 117, 
in part because it was assumed that District 18 would continue to be an African- 
American majority district and because incumbent Congressman Craig Washington 
was not active in redistricting. See id.

Senator Ellis similarly testified that “[i]n the absence of an Andrews’ 
district, Senate District [13] could have been the starting point for District 18, 
with population added to bring it up to the size of a Congressional district ” 
Lawson Exh. 7 at T)18.



39a

Martinez’s wishes, the downtown links the two major quadrants of 
District 29 in its final form.* 29 30

Senator Green’s insistence on including his primarily Anglo 
‘home” precincts in District 29 had the effect of diluting the Hispanic 
population percentage of the district. See Dep. of Martinez at 28. 
Representative Martinez testified that it became necessary to operate 
at the Census block level, in order to reach the agreed upon 61% 
Hispanic percentage. See id. In sum, the inclusion of certain Anglo 
precincts in District 29 necessitated operating at the block level -- that 
is, necessarily splitting precincts -- to find Hispanic voters to meet the 
target percentage.31 See id.

The effect of splitting dozens of VTD’s to create Districts 18 
and 29 was an electoral nightmare. Harris County estimated that it 
must increase its number of precincts from 672 to 1,225 to 
accommodate the new Congressional boundaries. Polling places, 
ballot forms, and the number of election employees correspondingly 
multiplied. Voters were thrust into new and unfamiliar precinct 
alignments, a few with populations as low as 20 voters.32

7. Congressional District 28
The enormous growth in the Hispanic population in Texas — 

particularly South Texas -- assured that a new Hispanic seat would be 
drawn in the South Texas area. See Plaintiff Exh. 4C at 5. 
According to the Narrative of Voting Rights Act Considerations in 
Affected Districts, construction of the South Texas district posed no 
major problems concerning minority voting strength or adjustment of 
population numbers/percentages because of the heavy Hispanic

At least one observer, Ed Martin, noted that, in drawing Districts 18 and
29, the only way to protect all incumbents of both parties, draw two majority-
minority districts, and get 76 votes in the Houge and 21 votes in the Senate was 
for one district to go through Downtown and the other to go around it.” Lawson 
Exh. 15,118.

As Carl Reynolds testified, once a precinct or VTD is split, the 
redistricting software provides no election information at the block level. See 
Dep. of Reynolds at 34. Unlike election data, racial information is available at 
this level. See id. at 35.

In such micro-precincts, a voter might perceive that the secrecy of his or 
her ballot was jeopardized by the new precinct lines, especially if turnout was 50% 
or below.



40a

concentration throughout the region. See id. at 5-6. District 28 as 
constructed runs from Bexar County south to Starr and Zapata 
Counties and is 60.4% Hispanic in total population and 8.5% African- 
American.33

Then-Senator Frank Tejeda, Vice-Chair of the Senate 
Subcommittee on Congressional Districts, was primarily responsible 
for the development of the South Texas districts generally and in 
particular for the drawing of the new 28th District. See id. at 5; 
LULAC Exh. 6 at 5. As now Congressman Tejeda concedes in his 
affidavit submitted in this case, he attempted to draw a district which 
would facilitate his potential candidacy. See LULAC Exh. 6 at 8. To 
this end, Tejeda included south Bexar County and much of east San 
Antonio in District 28 — both areas which he had represented in the 
Texas Senate. See id.

Congressman Tejeda also testified that he and his staff 
attempted to comply with the wishes of the Texas Democratic 
Congressional delegation in drawing districts in South Texas. See id  
at 5. For example, Congressman Kika De La Garza insisted that 
Hidalgo County not be divided between districts, and Congressman 
Solomon Ortiz Tet it be known that he did not want either Cameron or 
Nueces County split.” Id. at 6. None of these counties ended up split 
in the final redistricting plan. Keeping these counties whole meant, 
however, that Jim Wells County and Kleberg County -- apparently 
less politically powerful -  would eventually be split. See id. at 9. As 
for the splits in Guadalupe County, Tejeda maintained he had no 
reason to believe the cuts were made for anything other than political 
reasons.34

A 1982 objection by the Justice Department to proposed east-west 
configurations for Districts 15 and 27 in South Texas resulted in their present 
north-south configuration. See United States Exh. 1065 at 9; 6/29/94 TR. at 3- 
169. This certainly influenced -- perhaps dictated -- the north-south configuration 
of District 28.
34

While the part of Guadalupe County split into District 28 contained a 
combined 52.3% African-American and Hispanic population, the portion slit into 
District 21 — represented by Republican Congressman Lamar Smith — contained 
only 23.4% African-American and Hispanic population. See Plaintiff Exh. 36H at 
4. Similarly, the part of Comal County split into Congressional District 28 
contained 62.1% African-American and Hispanic population, but the portion put in



41a

Nick Dauster worked for Senator Tejeda during the 1991 
Congressional redistricting and was the lead Senate staff person on 
South Texas Congressional redistricting. See LULAC Exh. 1 at 5. 
He explained that District 28 needed additional population and ‘It was 
suggested that we include Democratic communities in Guadalupe and 
Comal Counties.” Id. at 15. These communities were heavily 
minority, but — according to Dauster — had much in common with the 
portions of San Antonio in District 28. See id.

Finally, Congressman Tejeda observed that District 28 as 
constituted represents many communities of interest. The district is 
composed primarily of low to middle income, blue collar, working 
class families. See id. at 2. Much of the district is involved in 
agriculture and related industries. See id. The district also has a very 
large veteran population of approximately 10%. See id. at 3.

8. Other Congressional Districts
Many of the remaining districts challenged by the plaintiffs 

share a troubling characteristic: counties within the district appear to 
be split on racial lines. Lubbock County is a prime example of this 
trait among these districts. While the part of Lubbock County that 
was split into Congressional District 13 — occupied by Democrat Bill 
Sarpalius — contained 77.4% African-American and Hispanic 
population, the part split into Republican Larry Combest’s District 19 
contained only 19.2% African-American and Hispanic population. 
See Plaintiff Exh. 36H. During the Texas Senate floor debate on 
August 24, 1991, the day Plan.C657 was passed by the Senate, then- 
Senator Eddie Bernice Johnson, Chair of the Subcommittee on 
Congressional Districts, succinctly explained the split in Lubbock 
County:

BIVINS: But I’m referring to the 19th and the 13th 
Congressional districts specifically in pointing out that 
there are split counties and specifically --

JOHNSON: Yes, I can tell you why Lubbock is split. 
It splits to remove that Black community into a district 
where they can have more impact.

Smith’s district was only 10.6% African-American and Hispanic population. See 
id.



42a

United States Exh. 1092 at 21.
Midland and Ector Counties raise the same issue. In Ector 

County, the part of the county split into former Democratic 
Congressman Albert Bustamante’s District 23 contained 72.1% 
African-American and Hispanic population, while the part in 
Republican District 19 contained only 21.2% African-American and 
Hispanic population. See Plaintiff Exh. 36H. In neighboring Midland 
County, the part of the county split into Congressional District 23 
contained 76.5% African-American and Hispanic population; the part 
split into District 19 contained less than 17% African-American and 
Hispanic population (16.2%); and the part split into Republican 
Lamar Smith’s District 21 contained only 10.9% African-American 
and Hispanic population. See id.

In explaining the Midland County split during floor debate on 
August 24, then-Senator Johnson maintained that “the Congressionals 
[i.e., the Congressional Delegation] feel that that minority population 
ought to go into that minority district and that’s where those 
minorities out there wanna go, and that’s the reason why they put 
them in there.” United States Exh. 1092 at 1 (tape 2). Johnson’s 
testimony in Terrazas explaining the Midland County split emphasized 
that the district lines were really responding to the desire of minorities 
to be in District 23:

We made sure we had the minorities’ input on these 
areas. I have heard comments about somebody in 
Midland, what have you. We were responding to 
minorities. They wanted to be certain places. They 
didn’t always feel free, they tell me, to even say that to 
anyone else, but they felt free to tell me. And we were 
responsive to them.

Plaintiff Exh. 8B at 243.
Speaking more generally, Congresswoman Johnson testified that 

county splits along minority lines in Plan C657 are not accidental. 
See Dep. of Johnson at 97. These county splits — whether reflecting 
the urgings of minorities or incumbents or both — occur throughout 
the challenged districts:



43a

1- Nacogdoches County. Texas: While the part of 
Nacogdoches County that was split into Democrat Charles Wilson’s 
Congressional District 2 contained 52.5% African-American and 
Hispanic population, the part split into Democrat Jim Chapman’s 
District 1 contained only 13.2% African-American and Hispanic 
population. See Plaintiff Exh. 36H

2- Montgomery County, Texas: The part of Montgomery 
County that was split into District 2 contained 40.9% African- 
American and Hispanic population, while the part split into District 8 
-  represented by §Republican Jack Fields -  contained only 8.1% 
African-American and Hispanic population. See id

3- Waller County, Texas: While the part of Waller County 
that was split into Democrat Greg Laughlin’s District 14 contained 
56.9% African-American and Hispanic population, the part of the 
county allocated to District 8 contained only 8.6% African-American 
and Hispanic population. See id.

4- Brazos County, Texas: The part of Brazos County that 
was split into Democrat John Bryant’s District 5 contained 71.7% 
African-American and Hispanic population, while the part split into 
Congressional District 8 contained only 15.3% African-American and 
Hispanic population. See id.

Brazoria County, Texas: While the part of Brazoria 
County that was split into District 14 contained 32.0% African- 
American and Hispanic population, the part split into Republican Tom 
DeLay s District 22 contained only 22.8% African-American and 
Hispanic Population. See id.

6. Hunt County, Texas: While the part of Hunt County split 
into District 1 contained 20.4% African-American and Hispanic 
population, the part of the county split into Democrat Ralph Hall’s 
District 4 contained only 8.0% African-American and Hispanic 
population. See id.

7 Gregg County, Texas: The part of Gregg County that was 
split into District 1 contained 32.2% African-American and Hispanic 
population, while the part split into District 4 contained only 17.8% 
African-American and Hispanic population. See id.

Denton County. Texas: While the part of Denton County 
that was split into Bill Sarpalius’ District 13 contained 22.0% 
African-American and Hispanic population, the part split into



44a

Republican Joe Barton’s District 6 and Democrat Hall’s District 4 
contained only 10.0% and 9.2% African-American and Hispanic 
population respectively. See id.

9. Collin County, Texas: While the part of Collin County 
that was split into Congressional District 30 contained 57.4% African- 
American and Hispanic population, the part split into District 4 
contained 17.2% African-American and Hispanic population and the 
part split into Republican Sam Hall’s District 3 contained only 7.7% 
African-American and Hispanic population. See id.

10. Smith County, Texas: The part of Smith County split into 
District 5 contained 64.0% African-American and Hispanic 
population, while the part of Smith County split into District 4 
contained only 13.2% African-American and Hispanic population. See 
id.

11 ■ Ellis County, Texas: While the part of Ellis County that 
was split into Democrat Martin Frost’s District 24 contained 29.0% 
African-American and Hispanic population, the part split into District 
6 contained only 10.8% African-American and Hispanic population.
See id-

12. McCulloch County, Texas: While the part of McCulloch 
County that was split into Democrat Chet Edwards’ District 11 
contained 30-.3% African-American and Hispanic population, the part 
of the county split into Republican Lamar Smith’s District 21 
contained only 13.1 % African-American and Hispanic population. See 
id,

13. Williamson County, Texas: While the part of Williamson 
County that was split into District 14 contained 33.7% African- 
American and Hispanic population, the part split into Congressional 
District 21 contained only 15.5% African-American and Hispanic 
population. See id.

14- Tom Green County, Texas: While the part of Tom Green 
County split into Democrat Charles Stenholm’s District 17 contained 
44.6% African-American and Hispanic population, the part split into 
District 21 contained only 13.1% African-American and Hispanic 
population. See id.

13- Fort Bend County. Texas: The part of Fort Bend County 
that was split into Democrat Mike Andrews’ District 25 contained 
80.2% African-American and Hispanic population, while the part of



45a

Fort Bend County split into District 22 contained only 29% African- 
American and Hispanic population. See id.

Another split of a different sort merits mention, specifically 
the splitting of the city of Amarillo, which lies in both Potter and 
Randall Counties. Randall County and its portion of Amarillo were 
included in Republican Larry Combest’s District 19, while Potter 
County and its share of the city were sent to Democrat Bill Sarpalius’ 
District 13. During debate on the Senate floor on the day of the plan’s 
passage, Senator Johnson explained the split of Amarillo as a response 
to the demands of the minority communities in the city:

SIBLEY: You mentioned the Black population of ah 
Amarillo was moved into the 13th Congressional 
District. For what purpose?

JOHNSON: Their direct quote to me, and [sic] was 
that they would rather be in Potter and have a 
Representative that they could relate to best and the - 
the respect to the other one in Randall, and they felt 
that with the two the various populations could 
communicate well and they had two good team 
members to look after their interests.

United States Exh. 1092 at 22; see also Dep. of Johnson at 243.
D. Expert Testimony
This portion of the opinion provides a brief summary of the 

conclusions of most of the experts employed by the parties. Repeating 
or summarizing the methodology employed by the experts is avoided 
in the interest of brevity. References to the voluminous reports 
submitted by the experts will point the interested reader in the right 
direction.

Dr. Ronald Weber was the plaintiffs’ main expert witness and 
their only expert to testify at trial. Dr. Weber made the following 
conclusions in his report: race was the overriding factor in the drawing 
of lines for Texas Congressional districts; Plan C657 violates 
traditional districting criteria by creating noncompact districts as well 
as by splitting 35 counties and a number of municipalities; districts 
15, 18, 20, 28, and 30 are “overly safe” from the standpoint of 
assuring the election of a candidate of choice of African-American or



46a

Hispanic voters. See Plaintiff Exh. 36. Finally, Dr. Weber concluded 
with an analysis of alternative districting plans, including Plan C676 
which he developed for this litigation.35 See id. at 30.

Dr. Weber’s conclusions as to the compactness of the 
Congressional districts merit elaboration. Employing an “eyeball” 
approach to compactness, Dr. Weber concludes that Districts 3, 4, 5, 
6, 8, 9, 12, 14, 15, 16, 18, 19, 21, 22, 23, 24, 25, 28, 29, and 30 are 
not compact. See id. at 10. Next, employing three quantitative 
measures of compactness, dispersion compactness, perimeter 
compactness, and population compactness, Dr. Weber observes that 
ten of the districts -- 3, 4, 6, 14, 18, 21, 23, 25, 29, and 30 -- score in 
the lowest category on one of the three compactness measures. See id. 
at 11; see also Pildes & Niemi, supra at 549-50, 553-59 (1993) 
(assessing worth of each quantitative measure in Shaw-type inquiry).

Dr. Allan J. Lichtman served as the main expert for the State of 
Texas. His report offers three major conclusions. First, Dr. Lichtman 
concludes that Plan C657 “substantially protects incumbents of both 
the Democratic and Republican parties.” State Exh. 14 at 6. Second, 
elections in the areas in which the state created majority-minority 
districts are characterized by racially polarized voting between Anglos 
and minorities. See id. at 4. Finally, Dr. Lichtman suggests that the 
three alternative plans proposed by plaintiffs — Dr. Weber’s Plan 
C676, Senator Johnson’s original Plan C500, and the Owens-Pate 
Plan C606 — are deficient in that they ‘fall well short of the 
legislative goal of protecting incumbents, both Democrats and 
Republicans,” id. at 5, and effectively reduce opportunities for 
minorities to elect candidates of choice. See Plaintiff Exh. 35 (Plan 
C676); Plaintiff Exh. 33 (Owens-Pate Plan C606); Plaintiff Exh. 29 
(Plan C500).

Two other experts for the state submitted reports. Dr. Chandler 
Davidson discussed the history of African-American voting rights in 
Texas. See State Exh. 17. He concluded that racial polarization “in 
the sociological sense” still exists in Texas and that such polarization 
will actually increase if the number of majority-minority districts 
decreases. See id. at 87. Dr. Paul Geisel provided a detailed 
demographic profile of Districts 18, 29, and 30. See State Exh. 18.

35

supra.
An overview of the alternative districting proposals is provided in part E.



47a

The Lawson defendant-intervenors submitted the report of Dr. 
Richard Murray. See Lawson Exh. 26. Dr. Murray reviewed the 
history of Congressional redistricting in Harris County, focusing 
especially on the 1991 redistricting of the county. See id. at 1. Dr. 
Murray observed 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. See id. at 17-18.

The LULAC defendant-intervenors submitted the report of Dr. 
Robert Brischetto. See LULAC Exh. 19. Dr. Brischetto’s report 
evaluates Dr. Weber’s alternative plan and concludes that it 
“discriminates against Hispanic voters.” See id. at 16. Dr. Brischetto 
suggests that the alternative plan attempts to “crack,” “pack,” and 
“stack”the minority populations in South Texas. See id.

Finally, the United States submitted the reports of four experts. 
Dr. Paul Waddell conducted an analysis of land uses as related to the 
boundaries of Congressional District 30. See United States Exh.
1070. Dr. J. Morgan Kousser examined the motivations of recent 
Congressional redistricting efforts in Texas. See United States Exh.
1071. In reviewing 1991 redistricting efforts, Dr. Kousser essentially 
concludes:36

It is conceivable that there are instances in which a 
desire to create a district for one racial or ethnic group 
is the only explanation for the shape of legislative 
boundaries. The evidence shows conclusively that 
Texas in 1991 is not such an instance.

As will be fully set out in part IV of the opinion infra, the court strongly 
disagrees with Dr. Kousser’s view of the “evidence” before him. Furthermore, 
Dr. Kousser s inquiry was limited to whether “other motives at least partially 
explain why the lines ... were drawn where they were” or whether race was 
literally the o n ly  reason for district shapes. See United States Exh. 1071 at 1. In 
part IV, we elaborate on our disagreement with this implicitly narrow view of a 
Shaw claim.



48a

Id. at 53. Dr. Lisa Handley evaluated the districts under Plan C657 in 
terms df their geographic compactness and concluded that the plan is 
“reasonably compact because a large portion of the districts are 
composed of whole counties and follow state, county, and city 
boundaries.”37 United States Exh. 1067 at 5. Lastly, Dr. Charles 
Cotrell summarizes § 5 objections in Texas since the state became a 
covered jurisdiction and considers this historical backdrop in light of 
the present district configuration. See United States Exh. 1065.

E. Other Districting Plans
Three alternative districting plans received considerable 

attention in this litigation and will therefore be briefly described. The 
first was authored by Dr. Weber, the plaintiffs’ main expert witness, 
as part of his report. See Plaintiff Exh. 35. According to Dr. Weber, 
Plan C676 allows two African-American districts -- one each in 
Dallas County and Harris County; six Hispanic districts -- one in far 
South Texas, one in El Paso County, two in Bexar County, one in 
South Texas with Nueces County as its ‘tnajor center,” and one in 
rural southwest Texas; and one district in Harris County “subject to 
substantial African-American and Hispanic influence.” Plaintiff Exh. 
36 at 31. Each of these majority-minority districts “[is] also designed 
to be more compact than the comparable districts in the current state 
plan.” Id. at 32.

Dr. Weber described the principles he followed in developing 
Plan C767:

I tried to follow the principle that the metropolitan 
counties would be split as little as they could, but 
recognizing, of course, you have to construct whole 
districts in each of those. What I tried to do is do as 
few splits between counties, and I got down to 
basically the point where you have to do some because 
you have one person, one vote considerations; but 
basically one of the most important things I did is I 
told the operator of the computer, I said: ‘1 do not

At least with regard to Districts 18, 29, and 30, the suggestion that these 
districts are “compact” under any reasonable definition of the term is a 
proposition we flatly reject. See IV. A. 1.-2. infra.



49a

want you to put on the screen the racial make-up of 
any of the building blocks we are going to use.”

6/28/94 TR. at 133. Although he did not want to split any VTD’s, 
Dr. Weber testified that he eventually had to for one-person, one-vote 
considerations. See id.

William Owens and A.J. Pate, two concerned citizens of Texas, 
presented their plan — eventually denominated C606 — to the Texas 
House Redistricting Committee at hearings in Austin. See Plaintiff 
Exh. 33. Their plan -  entitled “A Modest Proposal for Fair 
Redistricting in Texas for the 1990 V ’-  creates a new urban African- 
American seat in Dallas, ‘With the possibility of creating a new rural 
Black impact district.” Id. at 11. The Owens-Pate plan also creates 
two new Hispanic seats, one in the Houston area and an additional 
seat along the border with a population base in Laredo. See id. at 3. 
They believe their plan results in “compact districts of basically equal 
population, which unifies communities of similar economic/geographic 
interests” as well as corrects for the underrepresentation of ethnic and 
racial minorities. See id. at 11.

Senator Johnson’s plan — denominated C500 — was first 
released in May 1991 and drew a great deal of reaction from around 
the state. See Dep. of Johnson at 51. While minority voters did not 
object, certain incumbents -  especially Congressman Martin Frost -  
were upset. Sge id. Under C500, Congressman Frost’s residence was 
not in District 24 but was included in Senator Johnson’s proposed 
African-American District 30. See id. at 52. Under the plan five 
other congressmen would have been thrown into districts other than 
the ones they currently represent. See United States Exh. 1036 
(Frost, Bryant Aides Assail New House District Plan” Dallas 
Morning News, 5/13/91). Dr. Weber was impressed with C500:

I was really amazed that the very first plan that was 
released to the public was in my mind the plan that the 
legislature if, all other things being equal, if they had 
to rush quickly, they could have adopted it and they 
would have had a fairer plan than the plan the 
legislature adopted.

6/28/94 TR. at 129.



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IV. FACTUAL FINDINGS AND LEGAL CONCLUSIONS
This court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 

1343, 2284. Having considered the evidence, the memoranda of law 
submitted by the parties, the stipulations of fact, the proposed findings 
and conclusions, and counsel’s oral arguments, this court makes the 
following findings of fact and conclusions of law, pursuant to Fed. R. 
Civ. P. 52(a). Any conclusion of law which should be construed as a 
finding of fact is hereby adopted as such. Any finding of fact that 
should be construed as a conclusion of law is hereby adopted as such.

Plaintiffs contend that under Shaw v. Reno. 113 S.Ct. 2816 
(1993) and the Equal Protection Clause, all but six of the State’s 
Congressional districts are illegally constituted. They allege that 
Congressional Districts 18, 29, and 30 owed their extraordinarily odd 
shapes to an intent to segregate minority voters. These districts, 
together with District 28, will hereinafter be referred to occasionally 
as the ‘Voting rights districts.” Other districts in the state, according 
to the plaintiffs, are the products of intentional segregation because 
they split counties and cities along racial lines to achieve population 
balance.38

To evaluate these contentions it is necessary first to review the 
criteria of a Shaw claim and to weigh some of the State’s general 
defenses. We then analyze separately the voting rights districts and 
the State’s other Congressional Districts that are challenged by the 
plaintiffs. The pertinent issues in each instance are what role race 
played in the formulation of the districts and whether the resulting 
districts’ boundaries are sufficiently explainable on other than racial 
grounds. Finally, we consider whether the state had a compelling 
justification to segregate voters by race.

Both the state and the Lawson Intervenors have challenged the standing 
of the plaintiffs to question the constitutionality of Congressional districts other 
than those in which they reside. Their argument seems clearly refuted by Shaw, in 
which the plaintiffs, five residents of Durham County, North Carolina, challenged 
the makeup of the two African-American majority Congressional districts in the 
state. The plaintiffs resided in one of those districts and in an adjoining, non- 
African American majority district. By deciding that appellants stated a claim for 
constitutional relief, the Court inferentially decided they had constitutional 
standing to sue. See Shaw. 113 S.Ct. at 2821. On remand, the three-judge court 
in Shaw. No. 92-202-CIV-5-BR (E.D.N.C. August 1, 1994), also concluded that 
the plaintiffs had standing. We agree with that court’s reasoning and conclusion.



51a

The way in which the Court described the nature of the equal 
protection claim both places Shaw squarely in the traditional mode of 
constitutional analysis concerning racial classifications and reflects 
the Court s sensitivity to the legislative districting process. For 
reasons that we shall explain, we do not agree with the narrow view 
that Shaw recognizes an equal protection claim only in such extreme 
circumstances of racial gerrymandering that hardly any such claim 
will ever be provable. On the contrary, the Court itself distinguished 
Shaw on an obvious ground from the truly narrow constitutional claim 
of partisan gerrymandering adopted in Davis v. Bandemer. 478 U.S. 
109, 118-27 (1986): racial classifications are accorded the strictest 
constitutional scrutiny. See Shaw. 113 S.Ct. at 2828.

What, then, does Shaw identify as the characteristics of equal 
protection in the legislative districting process? The Court accepted 
the claim of registered voters in North Carolina that “redistricting 
legislation that is so extremely irregular on its face that it rationally 
can be viewed only as an effort to segregate the races for purposes of 
voting, without regard for traditional districting principles and without 
sufficiently compelling justification” is unconstitutional. Id. at 2824.

The central purpose of the Fourteenth Amendment ‘Is to prevent 
the states from purposefully discriminating between individuals on the 
basis of race.” Id. (citing Washington v. Davis. 426 U.S. 229, 239 
(1976)). Drawing on traditional Fourteenth Amendment precedent in 
racial cases, the Court pointed out that benign or remedial racial 
classifications are as suspect as malign discrimination and that among 
the vices of racial classifications is their tendency to “stigmatize 
individuals by reason of their membership in a racial group and to 
incite racial hostility.” Id. (citing Richmond v, J.A. Croson Co 488 
U.S. 469, 493 (1989) (plurality opinion)). State legislation that 
expressly distinguishes among citizens because of their race must be 
narrowly tailored to further a compelling governmental interest. See 
Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 277-78 (1986) (plurality 
opinion). These analytical principles apply not only to legislation that 
makes explicit racial distinctions but also to those “tare” statutes that, 
although race-neutral, are on their face “’unexplainable on grounds 
other than race.’” See Shaw, 113 S.Ct. at 2825 (quoting Arlington 
Heights v. Metropolitan Housing Development Corp . 429 U.S. 252,



52a

266 (1977)); see also Yick Wo v. Hopkins. 118 U.S. 356, 373-74 
(1886).

The Court agreed with the plaintiff voters’ assertion that if 
redistricting legislation is so bizarre on its face “that [it] is 
‘unexplainable on grounds other than race,’ it demands the same close 
scrutiny that we give other state laws that classify citizens by race.” 
Shaw, 113 S.Ct. at 2824-25. The Court cited voting rights cases to 
support that conclusion. Once established, the Court said, a racial 
gerrymander should not receive less scrutiny under the Equal 
Protection Clause than other state legislation classifying citizens by 
race. See id. at 2826.

Having connected the constitutional claim recognized in Shaw to 
its unbroken line of Fourteenth Amendment jurisprudence, the Court 
drew on two voting rights cases and a hypothetical example to 
illustrate how to recognize a racial gerrymander. Gomillion v. 
Lightfoot. 364 U.S. 339 (1960), represents the “exceptional case” in 
which proof of intentional classification is easy. See Shaw. 113 U.S. 
at 2826. In Gomillion. the Court illustrated its opinion with a map of 
the formerly rectangular shape of Tuskegee, Alabama, as it had been 
disfigured by an ‘\mcouth 28-sided” municipal boundary line that 
allegedly fenced out of the city limits all but four or five of the 
locality’s African-American citizens. Similarly obvious, Shaw 
observed, ‘Would be a case in which a State concentrated a dispersed 
minority population in a single district by disregarding traditional 
districting principles such as compactness, contiguity, and respect for 
political subdivisions.” Id. at 2827.

Just as Gomillion demonstrates that irregularly shaped districts 
can be evidence of purpose or intent to segregate voters by race, so in 
a later case the Supreme Court held that de facto segregation alone is 
insufficient if other districting criteria contradict a discriminatory 
purpose. See Wright v. Rockefeller. 376 U.S. 52 (1964). In Wright. 
New York state had redistricted the New York City area to 
accommodate four seats in Congress rather than the six that had 
previously existed. As the district lines were drawn, one district was 
predominantly white, one was predominantly ‘hon-white,” and the 
others had sizable minority populations. Plaintiffs contended that the 
minorities had been packed into one district in violation of Gomillion. 
The Supreme Court, however, accepted the fact findings of the three-



53a

judge panel that intent to discriminate racially had not been proven. 
Wright observed that because of the geographical concentration of 
non-white voters in one area of the county, it would have been 
difficult to ‘fix districts so as to have anything like an equal division 
of these voters among the districts.” Id. at 57.

Wright aptly illustrates the limits of a Shaw claim. Both the 
Supreme Court and three-judge court decisions in Wright make plain 
that although there were two racially distinct Congressional districts, 
their borders were not highly irregular; their configuration was 
logically traceable from the pre-existing district boundaries; each 
district was reasonably compact and contiguous; and indeed, to have 
split up a minority population that resided primarily in one geographic 
area would have been difficult to accomplish. See id. at 56-58; 
Wright v. Rockefeller. 211 F.Supp. 460, 466-68 (S.D.N.Y. 1962).

Wright and Gomillion represent the two poles of a potential 
Shaw claim.39 From Gomillion. it appears that bizarrely shaped 
districts whose boundaries were created for the purpose of racially 
segregating voters are unconstitutional. The Court’s hypothetical 
example likewise condemns districts that bring together a dispersed 
minority population without regard for traditional districting criteria. 
If a majority-minority district reasonably adheres to objective 
districting factors, however, as in Wright, no invidious discrimination 
exists; that type of district is justified on its own terms apart from the 
incidental factor of race.40

In thus describing a Shaw claim, we do not mean to suggest that other 
racially motivated districting or election procedures are no longer constitutionally 
protected. As Shaw stated, the intentional dilution of minority voters remains 
unconstitutional under the Fourteenth Amendment. See White v. Register. 412 
U.S. 755, 765-66 (1973). The Fifteenth Amendment proscribes outright denial or 
abridgement of the right to vote
40

With due respect to the two-judge majority on remand of Shaw. No. 92- 
202-CIV-5-BR (E.D.N.C. Aug. 1, 1994), we disagree strongly that the misshapen 
boundaries of a racially constructed district are merely prima facie evidence of a 
constitutional violation and not part of its essence. As we pointed out above, 
Shawls reliance upon the contrast among Gomillion. the Court’s dispersed 
minority hypothetical, and Wright refute this reading. Moreover, the Supreme 
Court s insistence that appearances do matter, because tortuously constructed 
districts foster rather than dispel racial consciousness and stereotyping, see Shaw.
113 S.Ct. at 2827-32, expressly relates to traditional districting principles.



54a

Texas asserts two general defenses that, if accepted, would 
undermine essential premises behind Shaw's definition of 
unconstitutional race-conscious redistricting. First, the State asserts 
that its districts cannot be unconstitutionally bizarre in shape because 
Texas does not have and never has used traditional redistricting 
principles such as natural geographical boundaries, contiguity, 
compactness, and conformity to political subdivisions. Second, the 
State asserts that the districts’ irregular shapes were caused not by 
racial classification of voters in any instance but by the Congressional 
delegation’s demands, acceded to by state government, that all 
incumbent Congressional officeholders be protected.

It is true that Texas has no constitutional or statutory 
constraints on creating legislative districts. However, the portrait of 
redistricting history in Texas, as painted by the state, is inaccurate. 
From the State’s current perspective, successive generations of Texas 
legislators have eschewed tying districts to pesky constraints like 
geography, political subdivision boundaries, compactness, and 
contiguity. Certainly, this state’s vast layout has undoubtedly made it 
difficult to fit Congressional districts perfectly within single 
geographic regions. But since 1960, the principle of assigning at least 
one Congressional seat to each major city has been followed, 
satisfying obvious geographical and community interests. See Lawson 
Exh. 26 at 8, 9, 11 (maps of Harris County districts in 1957, 1965, 
and 1971).

Texas points to only one Congressional district that was in the 
past configured in a highly irregular manner. That was Congressional

The Shaw remand court’s majority had to minimize Shaw’s concern with 
the appearance ot racial districts for obvious reasons. By all accounts, North 
Carolina s majority-minority districts, like those of Texas, are among the most 
distorted in the nation. If those districts survive constitutional close scrutiny, then 
Shaw may be a meaningless exercise.

The remand majority in Shaw discounted traditional districting principles 
both (1) as an element of the equal protection violation and (2) as a standard by 
which to compare the narrow tailoring of a district found to be racially 
gerrymandered. We have commented on the error in the first part of the Shaw 
remand majority’s analysis. The error in the second part of their rationale is 
discussed infra n. 55.



55a

District 6, which spanned an ungainly rural and urban corridor 
running from Dallas to Houston and was held for many years by 
Representative ‘Tiger” Teague. The exception — a mild deviation 
from traditional districting principles when compared to the 1991 
districts -  seems to prove the rule that, generally, Texas has not 
intentionally disregarded traditional districting criteria. A glance at 
the maps showing the organization of Texas’ Congressional districts 
in 1980 refutes the State’s argument that it recognizes no state interest 
in traditional redistricting principles. See Plaintiff Exh. 28A (map of 
Plan C001).

More fundamentally, the State describes incumbent protection as 
a state interest in redistricting that sufficiently explains otherwise 
irregular Congressional district boundaries. There is again tension 
between the state’s contention and the facts of this case. For one 
thing, no more than two or three incumbent Texas Congressmen were 
seriously jeopardized by the Legislature creating more minority 
districts. Additionally, never before have districts been drawn on a 
block-by-block or neighborhood- or town-splitting level to corral 
voters perceived as sympathetic to incumbents or to exclude 
opponents of the incumbents. This form of incumbent protection is 
much different in degree from the generalized, and legitimate, goal of 
incumbent and seniority protection previously recognized by the 
Supreme Court. See, e^ ,, White v. Weiser 412 U.S. 783, 791 
(1973); Gaffney v, Cummings. 412 U.S. 735, 753 n.18 (1973).

It is important to realize that as enacted in Texas in 1991, many 
incumbent protection boundaries sabotaged traditional redistricting 
principles as they routinely divided counties, cities, neighborhoods, 
and regions. For the sake of maintaining or winning seats in the 
House of Representatives, Congressmen or would-be Congressmen 
shed hostile groups and potential opponents by fencing them out of 
their districts. See 6/30/94 TR. at 4-46 (construction of District 18);

Congressional ^districting in 1980 split ten counties. See Plaintiff Exh. 
27. Ot those ten counties, Harris, Dallas, and Bexar were split because the 
population of the county exceeded the number of persons required for a single 
district. Thirty-four Texas counties were split for the current plan. See id. Only 
Harris, Dallas, Bexar, Tarrant, Travis, and El Paso were split because the 
population of those counties exceeded the number of persons required for a single 
district.



56a

Plaintiff Exh. 15 at 5 (construction of District 29). 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. See III.C.3. supra. The final result 
seems not one in which the people select their representatives, but in 
which the representatives have selected the people.42

But in any event, the State’s realization of its goal may not fully 
undo the traditional principles of districting that Shaw uses as a 
benchmark. Shaw nowhere refers to incumbent protection as a 
traditional districting criterion. Shaw acknowledges that compactness, 
contiguity, respect for political subdivisions, and like criteria -- 
though not constitutionally required — are “objective factors” that may 
disprove a racial gerrymander claim. See Shaw. 113 S.Ct. at 2827. 
To this extent, Shaw implicitly reaffirms the important interconnection 
of community and geography and effective representative government 
in drawing its distinction between those ideal districting criteria and a 
racial gerrymander that ignores them.43 While these criteria are

See Plaintiff Exh. 14 at 6 ^14.
43

Traditional, objective districting criteria are a concomitant part of truly 
“representative” single member districting plans. Organized political activity 
takes place most effectively within neighborhoods and communities; on a larger 
scale, these organizing units may evolve into media markets and geographic 
regions. When natural geographic and political boundaries are arbitrarily cut, the 
influence of local organizations is seriously diminished. After the civic and 
veterans groups, labor unions, chambers of commerce, religious congregations, and 
school boards are subdivided among districts, they can no longer importune their 
Congressman and expect to wield the same degree of influence that they would if 
all their members were voters in his district. Similarly, local groups are 
disadvantaged from effectively organizing in an election campaign because their 
numbers, money, and neighborhoods are split. Another casualty of abandoning 
traditional districting principles is likely to be voter participation in the electoral 
process. A citizen will be discouraged from undertaking grass-roots activity if, for 
instance, she has attempted to distribute leaflets in her congressman’s district only 
to find that she could not locate its boundaries.

In influencing the Legislature to draw districts that ensured their 
electoral success, Texas Congressional incumbents apparently foreswore these 
principles and opted to rely on their name recognition and a small base of zealous 
supporters to gain re-election. An even more pernicious tendency would seem to 
follow their incumbent gerrymandering: as the influence of truly local



57a

important in and of themselves, they are critical to Shaw’s calculus; 
districts that have no logical boundaries except those dictated by race 
are perceived by voters within and without the districts as existing 
solely to afford racial representation.44

organizations wanes, that of special interests waxes. Incumbents are no longer as 
likely to be held accountable by vigilant, organized local interests after those 
interests have been dispersed. The bedrock principle of self-government, the 
interdependency of representatives and their constituents, is thus undermined by 
ignoring traditional districting principles.

Shaw eloquently stated the constitutional offense created by such racial 
gerrymandering:

Put differently, we believe that reapportionment is one area in 
which appearances do matter. A reapportionment plan that 
includes in one district individuals who belong to the same race, 
but who are otherwise widely separated by geographical and 
political boundaries, and who may have little in common with 
one another but the color of their skin, bears an uncomfortable 
resemblance to political apartheid. It reinforces the perception 
that members of the same racial group — regardless of their age, 
education, economic status, or the community in which they live 
— think alike, share the same political interests, and will prefer 
the same candidates at the polls. We have rejected such 
perceptions elsewhere as impermissible racial stereotypes. By 
perpetuating such notions, a racial gerrymander may exacerbate 
the very patterns of racial bloc voting that the majority-minority 
districting is sometimes said to counteract.

The message that such districting sends to elected 
representatives is equally pernicious. 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. This is 
altogether antithetical to our system of representative 
democracy.

Justice Souter apparently believes that racial gerrymandering is 
harmless unless it dilutes a racial group’s voting strength. As 
we have explained, however, reapportionment legislation that 
cannot be understood as anything other than an effort to classify 
and separate voters by race injures voters in other wavs. It 
reinforces racial stereotypes and threatens to undermine our 
system ot representative democracy by signaling to elected



58a

The talismanic status of incumbent protection in the State’s 
argument somewhat resembles Alabama’s defense in Gomillion v. 
Liehtfoot. 364 U.S. 339 (1960). As Justice Frankfurter described it:

The respondents invoke generalities expressing the 
state’s unrestricted power — unlimited, that is, by the 
United States Constitution -- to establish, destroy, or 
reorganize by contraction or expansion its political 
subdivisions . . . [W]e freely recognize the breadth and 
importance of this aspect of the state’s political power.
To exalt this power into an absolute is to misconceive 
the reach and rule of this court’s decisions. . . .

Id. at 343. Justice Frankfurter said that the State was divorcing the 
teaching of other cases from their concrete factual circumstances. He 
concluded:

[S]uch power [to redistrict], extensive though it is, is 
met and overcome by the [Fourteenth Amendment] to 
the Constitution of the United States . . . the opposite 
conclusion, urged upon us by respondents, would 
sanction the achievement by a state of any impairment 
of voting rights whatever so long as it was cloaked in 
the garb of realignment of political subdivisions.

officials that they represent a particular racial group rather than 
their constituency as a whole. Justice Souter does not 
adequately explain why these harms are not cognizable under 
the Fourteenth Amendment.

*  * *  *

Racial classifications with respect to voting carry particular 
dangers. Racial gerrymandering, even for remedial purposes, 
may balkanize us into competing racial factions; it threatens to 
carry us further from the goal of a political system in which race 
no longer matters -- a goal that the Fourteenth and Fifteenth 
Amendments embody, and to which the Nation continues to 
aspire.

Shaw. 113 S.Ct. at 2927-32 (citations omitted) (emphasis added).



59a

Id. at 345. Reliance on a Gomiliion-like argument ill-befits the State 
of Texas. Incumbent protection is a valid state interest only to the 
extent that it is not a pretext for unconstitutional racial 
gerrymandering.

Finally, notwithstanding the State’s attempts to minimize their 
significance, racial data were an omnipresent ingredient in the 
redistricting process. Preparatory to the 1991 legislative session, the 
REDAPPL system contained the State’s redistricting maps that were 
capable of displaying every neighborhood in the state down to the 
street and block level. As soon as they became available following the 
1990 census, the racial statistics for each street and block were 
coordinated with the REDAPPL system so that the programmer could 
display both kinds of information simultaneously. No other 
socioeconomic census data were placed on the computer or available 
to the Legislature.

Chris Sharman, a legislative assistant heavily involved in the 
drawing of Congressional districts, confirmed the ubiquity of racial 
data on the REDAPPL computer system. He also testified that other 
forms of information pertinent to redistricting were available to the 
Legislature or the Congressional Delegation. Such information 
included socio-economic inferences drawn from the shape of streets; 
drive-by knowledge of territory gained by legislative aides; and the 
intimate familiarity of legislators with their constituents’ 
neighborhoods. While some political information was available on the 
computer at the precinct level, none of the partisan voting information 
was available for block-by-block portions of VTD’s. In other words, 
the racial information was the most specific information that could be 
used by those involved in the districting process.

That district lines throughout the state coordinate very closely 
with racial population boundaries is hardly disputed by the state. The 
plaintiffs’ expert demonstrated on maps of most of the 34 Texas 
counties whose boundaries were split among Congressional districts 
how closely racial and ethnic population data were coordinated with 
the Congressional boundary lines. In numerous instances, the 
correlation between race and district boundaries is nearly perfect. In 
the Dallas Metroplex area and the Harris County area, where three 
voting rights districts were created, the racial character of the line-



60a

drawing is manifest. The borders of Districts 18, 29, and 30 change 
from block to block, from one side of the street to the other, and 
traverse streets, bodies of water, and commercially developed areas in 
seemingly arbitrary fashion until one realizes that those corridors 
connect minority populations.

More specific details concerning the racial patterns of districting 
will be developed below. This court felt compelled to reveal the 
clarity and detail of the racial input into redistricting not simply 
because of its significance in this case. The question must arise in 
the future, when census statistics and other political information 
become even more sophisticated, how far legislators will go in 
adjusting district lines to protect their incumbency. Just as they 
micro-manipulated the racial composition of Texas Congressional 
districts in 1991, they may be enabled by a new body of statistical 
data to select their voters even more precisely in 2001.

Before proceeding with the discussion of particular districts, it 
is necessary to state our understanding of the allocation of the burden 
of proof under Shaw inasmuch as our understanding differs from the 
advocacy-based approaches of the parties. We agree with the courts 
in Havs and in Shaw on remand that a Shaw claim should be proved 
by the method typical of equal protection analysis. Plaintiffs are 
obliged to present evidence in support of their racial gerrymandering 
claim as outlined in Shaw. Defendants then have the burden to 
produce evidence that any districts found to be racially gerrymandered 
were dictated by a compelling state interest and are narrowly tailored 
to further that interest. Like the court in Havs. but unlike the majority 
on remand of Shaw, we believe part of the State’s burden of 
production required it to demonstrate that the appearance of the 
racially gerrymandered districts, as well as their existence, were 
narrowly tailored.45 As in all Constitutional cases, the plaintiffs retain 
the ultimate burden of proof.

A. The Voting Rights Districts

The defendants concede that Congressional Districts 18, 29, and 
30 were created for the purpose of enhancing the opportunity of 
minority voters to elect minority representatives to Congress. District 
18 has been an African-American majority district since 1970;

45 See n. 55 infra.



61a

although its African-American population had declined significantly 
since 1980, there is no evidence that the Legislature sought to 
redistrict that seat in a racially neutral way. Congressional District 
29, also in Houston, is artfully interwoven with Congressional District 
18 and responded to the demands of the Hispanic community to create 
a district for the burgeoning Hispanic population in Harris County.46 
District 30 in Dallas was intended to enable Dallas’ large African- 
American community to elect a Congressman. Finally, District 28 
assured that the expanding Hispanic community in South Texas would 
elect another member of the Texas Congressional delegation.

The demand for ‘fnajority-minority” Congressional Districts 
was repeated by numerous interest groups who appeared before 
legislative redistricting committee hearings throughout the state in 
1990. Then-Senator Eddie Bernice Johnson vigorously asserted the 
desire of the African-American residents of the Dallas-Fort Worth 
Metroplex for a African-American Congressional seat there. In 
Houston, the Hispanic banner was carried by a number of groups; 
prominently involved in the maneuvering was State Representative 
Roman Martinez, who intended to run for that seat. Then-State 
Senator Frank Tejeda from San Antonio intended to satisfy South 
Texas Hispanics’ claims upon a seat by drawing a district to 
encompass his Congressional aspirations. The record, in short, is 
replete with proof that the Legislature intended to devise four 
majority-minority Congressional seats.

This much can hardly be disputed. The State vigorously 
disagrees, however, with the suggestion that HB1, the districting 
statute, accomplished a purposeful racial gerrymander. The creation 
of majority-minority legislative districts, without more, may raise no 
Constitutional question. See Shaw. 113 S.Ct. at 2828 (‘We express 
no view as to whether ‘the intentional creation of majority-minority 
districts, without more’ always gives rise to an equal protection 
claim.’). To ascertain whether the act of the state government verged 
into unconstitutional territory, the court looks to several sources. 
Among other things, departures from traditional districting principles 
such as compactness, contiguity, respect for political subdivisions, 
and communities of interest are important in determining the

Ironically, an “Anglo” candidate beat an Hispanic candidate in the 
election to fill this seat.



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legislative intent. See Shaw. 113 S.Ct. at 2825-28. Further, the 
public record created in the process of enacting HB1 and the § 5 
preclearance submission by the State are important to determining the 
legislative intent. See Arlington Heights. 429 U.S. 252, 266-68 
(1977). Our analysis is facilitated by separately discussing 
Congressional District 30 and Congressional Districts 18 and 29. We 
will then consider District 28. Finally, we will discuss together the 
other districts challenged by the plaintiffs.

1. Congressional District 30
In creating District 30, the testimony reveals that the legislators 

aimed to reach a minority population of at least 50% voting age 
population, the minimum number thought acceptable to result in the 
election of an African-American representative. The ultimate shape of 
the district has been described as a body with tentacles as “complex 
and attenuated as a series of DNA molecules.” Michael Barone & 
Grant Ujifusa, The Almanac of American Politics 1277 (1994); see 
also Appendix (Map of District 30). The district sprawls throughout 
Dallas County, deliberately excludes the wealthy white neighborhoods 
of Highland Park and University Park and extends fingers into Collin 
County, which include the outermost suburbs of Dallas. In Collin 
County, the district picks up a small African-American neighborhood. 
The district extends into Tarrant County only to pick up a small 
border area with a high African-American concentration. It also 
reaches out to claim Hamilton Park, an affluent African-American 
neighborhood surrounded by whites. Part of the district runs along the 
Trinity River bottom, using it to connect dispersed minority 
population. Numerous VTD’s were split in order to achieve the 
population mix required for the district.

There is nothing compact or contiguous about this district. It is 
at least 25 miles wide and 30 miles long, but those measurements do 
not begin to reveal the district’s geographic complexity. Lying in the 
center of one of the heaviest population areas of Texas, the district’s 
boundaries reveal as much by what they exclude as by the population 
they include. Congresswoman Johnson was careful to include those 
African-American neighborhoods in which she felt the African- 
American voting participation rate would be high. She desired to 
exclude other neighborhoods in which, for reasons such as the 
disability of felony conviction, African-American voting rate



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participation would be low. See III.C.5. supra. Then-Senator 
Johnson’s testimony demonstrated that race was the primary 
consideration in the construction of District 30. She fought with 
incumbent Democrats Martin Frost and John Bryant to maintain her 
share of the Dallas African-American vote. The jostling for position 
was designed to secure a minimum 50% African-American total 
population.

The extent to which this district differs from a truly compact 
and contiguous majority-minority district is revealed by the plan that 
then-Senator Johnson herself submitted to the state Legislature. See 
Plaintiff Exh. 29. In that plan, a slightly larger portion of the Dallas 
County African-American population is included within a much more 
compact geographic area. Identifiable neighborhoods within Dallas 
remain intact. No VTD’s are split.

The state asserts that the convoluted boundaries of District 30 
are explainable on grounds other than race. Using a demographic 
study compiled specifically for this trial, the State asserts that there 
are socioeconomic, geographic, and other similarities among the 
residents of District 30. See United States Exh. 1070. We reject this 
study for several reasons. First, there is no evidence that the 
information it contains was available to the Legislature in any 
organized fashion before District 30 was created. Second, the study is 
not persuasive as an explanation for the boundaries of District 30. It 
describes, but it does not harmonize, the information concerning the 
district, and it does not differentiate the district from surrounding 
areas. Third, in so far as the study focuses on multi-family living 
units, it is inconsistent with the map drawers’ expressed desire to 
include many single family homes.

The Lawson intervenors assert that there is a community of 
interest among African-American voters which should be regarded as 
a legitimate criterion for legislative districting. Even if this argument 
would support the decision of the Legislature to take African- 
American voters’ group interests into account in the same way that it 
does the interest of other voters, e g., suburbanites, city-dwellers, 
retirees, the argument cannot go too far. Because a large part of this 
argument is based upon similarities grounded in race, it is particularly 
vulnerable to the Fourteenth Amendment’s proscription of racial 
classification in our society. Further, the intervenors’ argument will



64a

not support the creation of districts that have no basis in traditional 
neutral districting criteria. To permit such districts would fly in the 
face of Shaw.

The State also proffers its policy of incumbent protection as a 
non-racial reason for the convoluted boundaries of District 30. By all 
accounts, the infighting among Congressman Frost, Bryant, and then- 
Senator Johnson for “sympathetic” voters was fierce. 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 ‘Democrats” when they are 
deliberately placed in a contiguous district for the purpose of 
bolstering the re-election chances of other Democrats.47 The court 
considers it significant that Robert Mansker, an aide to Congressman 
Martin Frost, who according to witnesses played a key role in 
developing the Congressional reapportionment plan, vigorously 
avoided plaintiffs’ subpoena to testify in this case.48 See Plaintiff 
Exh. 37. Parenthetically, if incumbent protection was as important to

The State asserts that its position is bolstered by the Fifth Circuit’s 
recent en banc decision in League of United Latin American Citizens v. Clements. 
999 F.2d 831 (5th Cir. 19931 (en band, cert, denied. 64 U.S.L.W. (19941. In that 
§ 2 vote dilution case, the court concluded that the plaintiffs had not proven that 
racially disparate outcomes in state judicial races were caused by white bloc voting 
against the preferred candidates of African-Americans or Hispanics. Instead, the 
proof demonstrated that partisan politics rather than racial politics was the 
determining influence. The state argues that LULAC requires us to find that the 
legislature’s drawing of district boundary lines was also based on partisan politics 
rather than race. We disagree. The State’s argument compares apples and 
oranges. In LULAC. the plaintiffs’ burden was to prove whether race motivated 
white voters throughout the state. Their proof largely consisted of bivariate 
ecological regression statistics and other inferential techniques. In this case, 
however, the legislature’s intent was proven directly, through testimony of 
legislators, the § 5 preclearance submission, and the use of racial data on the 
REDAPPL system, as well as inferentially from the makeup of the districts 
themselves.

At least one newspaper reported that Congressman Frost acknowledged 
that Mr. Mansker avoided subpoenas “by disappearing for several days in order to 
avoid helping Republicans with their case.” David Flick, GOP Foe Challenges 
Frost to Release Aides’ Vouchers. Dallas Morning News, July 29, 1994, at 23A.



65a

the process as the State’s witnesses testified in deposition and at trial, 
it is surprising that the State offered virtually no such evidence either 
in its voluminous § 5 preclearance submission to the Justice 
Department or in Terrazas v. Slagle, the previous challenge to the 
1991 Congressional districts. With regard to District 30, we conclude 
that the policy of incumbent protection, to the extent it motivated the 
Legislature, was not a countervailing force against racial 
gerrymandering. Instead, racial gerrymandering was an essential part 
of incumbency protection, as African-American voters were 
deliberately segregated on account of their race among several 
Congressional districts.

We conclude that the contours of Congressional District 30 are 
unexplainable in terms other than race. They have no integrity in 
terms of traditional, neutral redistricting criteria. 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 District 30 and placed in other districts that are equally 
“untraditional.” Plaintiffs have carried their burden of proving a 
racial gerrymander.

2. Congressional Districts 18 and 29
Even more than in the case of District 30, Congressional 

Districts 18 and 29 were tailored to include designated numbers of 
minority voters. Achieving these results was no simple task. African- 
American and Hispanic populations inhabit large portions of Harris 
County in a checkerboard pattern with each other and with white 
citizens. Over the last decade, in fact, former African-American 
majority District 18 had lost members of that minority population and 
gained over 40% Hispanic population. Nevertheless, the preservation 
of District 18 as an African-American majority district was assumed.

A large part of the increase in Harris County Hispanic 
population during the 1980’s was attributable to immigration. The 
consequences of immigration for voting rights matters are 
problematic.49 The Legislature, however, decided to attempt to create

Under the Constitution as routinely interpreted, representation in the 
U.S. House of Representatives is apportioned among the states according to the



66a

a majority-Hispanic Congressional District. The shape of District 29 
then became subject to several constraints: the dispersion of the 
Hispanic population around the borders of District 18 and far to the 
east in Harris County and the conflicting ambitions of Representative 
Martinez and then-Senator Gene Green to run for Congress in the 
‘Hispanic” district. As Representative Martinez testified, the borders 
of District 29 became increasingly distended as he and Senator Green 
fought to place their state constituents within the new district. 
Finally, to the south, Congressman Andrews desired to maintain as 
many minority constituents as possible in his Democratic district.

These two districts are so tortuously drawn that an 8 '/2xll” map 
does not begin to show their block-by-block district lines. See 
Appendix (Map of Districts 18 and 29). The districts literally 
meander from one side of the street to the other and cross major 
thoroughfares, like Shepherd Drive, numerous times.

To say that this configuration violates traditional redistricting 
principles is an understatement. See generally Pildes & Niemi, supra 
at 563-64, 567, 569 (concluding that Districts 18 and 29 among the 
most noncompact in the nation). The magnitude of the violation 
becomes clear in light of the testimony of plaintiff Edward Blum, who 
campaigned for Congress in the new District 18 in 1992. Blum and

number of persons -- not just citizens -- in their population. States with high 
numbers of non-citizens, like Texas, benefit from this situation.

But the consequences of a large non-citizen population for voting rights 
issues are unclear and have been side-stepped by the Supreme Court. See Johnson 
v. DeGrandv. 114 S.Ct. 2647, 2662 n.18 (1994). In Texas, the overwhelming 
majority of non-citizens are Hispanics. Former Representative Roman Martinez 
estimated that 40% of Hispanics residing in Harris County are ineligible to vote 
because they lack citizenship. This uncomfortable fact did not deter Texas 
Hispanic politicians from demanding more Hispanic Congressional seats — even 
though § 2 vote dilution claims are ordinarily premised on measures of citizen 
voting age population.

We decide this case based on the assumption, shared by the parties, that 
for equal protection purposes, Hispanics are Hispanics, whether citizens or not. 
We believe, however, that in future cases, at the minimum, Hispanic plaintiffs 
should have to prove that the citizen and non-citizen Hispanic populations should 
be regarded as a cohesive ethnic group. See, e.g.. Shaw. 113 S.Ct. at 2830; Growe 
v Emison. 113 S.Ct. 1075, 1076 (1993).



67a

his wife spent months walking the entire district in order to shake 
hands with the voters. They had to carry a map to identify the district 
lines, because so often the borders would move from block to block. 
See 6/27/94 TR. at 20-21. Plaintiff Kenneth Powers who assisted 
Blum in his campaign testified that voters were confused and 
frustrated. They did not know why their district had been arbitrarily 
changed, and they did not know the candidates running for office. See 
Dep. of Powers at 43-44. The boundaries had become so complex 
that the county clerk’s office sent the wrong ballots to certain 
precincts and erroneously counted those votes within District 18. The 
total number of precincts in Harris County nearly doubled following 
the 1990 redistricting as a result of the complex new district lines.50 
See Plaintiff Exh. 10. In Districts 18 and 29, 60% of the residents 
live in split precincts after redistricting, and in District 25, over 40% 
were so affected. See Plaintiff Exh. 34Q.

The result of this line-drawing appears utterly irrational — 
unless one factors in the overlap between these district boundaries and 
the racial makeup of their underlying populations. The goal of 
separating Hispanic and African-American residents from each other 
and from the white population for purposes of voting led to the 
creation of these particular districts.

As in the case of District 30, the state posits that the irregular 
boundaries of Districts 18 and 29 were caused by the demand for 
incumbent protection rather than racial considerations. We disagree. 
The essential goal in creating these districts was to segregate 
Hispanics from African-Americans and both minorities from whites in 
order to retain at least 50% total African-American population in 
District 18 and achieve at least 61% total Hispanic population in 
District 29. Then-State Representative Roman Martinez clearly 
testified so in his deposition in this case where he said it was 
particularly necessary to split VTD’s in order to capture pockets of 
Hispanic residents for the new district.51 He reiterated his insistence

Harris County created 553 new precincts, bringing its total from 672 to 
1225 for the county. See Plaintiff Exh. 10.

During Dr. Weber’s testimony at trial, the court asked whether he had 
analyzed the portion of the split VTD’s that were excluded from the districts and 
compared those numbers with the core of the district from which they were 
excluded. See 7/1/94 TR. at 26-27. Dr. Weber indicated that he had not



68a

on having at least 61% Hispanic population in that district. Further, 
as we concluded in regard to District 30, the goal of incumbent 
protection was itself realized by the deliberate segregation of voters on 
the basis of race in the Harris County metropolitan area. 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.

The defendants also contend that African-Americans and 
Hispanics in Harris County belong to identifiable communities of 
interest that may be and were recognized as such for districting 
purposes. This argument is troubling for the same reason noted in 
regard to District 30. Although the issue of minority cohesion is 
relevant to a § 2 vote dilution claim, it is another matter entirely, as 
we previously stated, for a racial or ethnic group to claim an award of 
representation based on race or ethnicity apart from traditional 
districting criteria. Moreover, one must question how citizen and non­
citizen Hispanics comprise a community of interest — many obvious 
sociological issues, such as relative educational attainment, 
competition for similar jobs, taxpayer versus non-taxpayer statuts, 
and even linguistic differences were not plumbed before this court. 
We conclude that whatever may be proven in other cases, Shaw does 
not permit districting to be based on race or ethnicity in conditions 
such as these, which violate traditional districting criteria.

Finally, the defendants assert that because Districts 18 and 29 
each include residents of similar socioeconomic background and lie 
fully within Harris County, they are sufficiently compact to pass 
muster. We disagree. As all parties and their expert witnesses 
agreed, compactness must be a relative measure for Legislative

performed this analysis but indicated that he had provided the court with the 
necessary numbers and methodology.

The court has analyzed the racial composition of the split VTD’s in 
Harris County based on numbers provided by the Texas Legiglative Council and 
included in Dr. Weber’s report. In examining the number of individuals from 
VTD’s that were split in creating Districts 18 and 29, an overwhelming majority of 
those individuals placed in District 29 were Hispanic while an overwhelming 
majority placed in District 18 were African-American. This analysis supports the 
inference that VTD’s in Harris County were split for the central purpose of 
achieving a certain racial composition.



69a

districts. The Congressional Districts in West Texas are compact 
even though they span hundreds of square miles because they 
encompass all of the population lying within a distinct, clearly defined 
area. In a major urban county, compactness makes little sense if 
considered in terms of geographic sprawl alone, but it seems far more 
probative when viewed in terms of a city’s or county’s neighborhoods, 
geopolitical subdivisions, and business location. Adjusting the sense 
of compactness to the complexity and population density of the urban 
landscape demonstrates that Districts 18 and 29 are not compact at 
all. Their contorted shapes are the antithesis of compactness.

Because Districts 18 and 29 are formed in utter disregard for 
traditional redistricting criteria and because their shapes are ultimately 
unexplainable on grounds other than the racial quotas established for 
those districts, they are the product of unconstitutional racial 
gerrymandering.

3. Narrow Tailoring to Achieve a Compelling State 
Interest?

The defendants also contend strenuously that Districts 18, 29, 
and 30, having been created in part to satisfy the State’s duties under 
the federal Voting Rights Act, are for that reason justifiable under 
Shaw. This is a subtle but significant misreading. A Shaw claim for 
denial of equal protection is stated if the state created bizarrely shaped 
districts for the purpose of racially segregating voters who are 
geographically and otherwise dispersed according to traditional 
districting criteria. But Shaw makes it plain that the states’s intention 
to comply with the Voting Rights Act when it created such districts 
will not necessarily save it constitutionally; the Voting Rights Act may 
not be used to sanction the “racial apartheid” that Shaw and the 
Fourteenth Amendment condemn.

Part IV of Shaw clearly holds, however, that compliance with 
the Voting Rights Act might be a compelling state interest that, if 
narrowly tailored, would withstand the strict scrutiny demanded of 
racial classifications under the Fourteenth Amendment. Part IV of 
Shaw was written to refute Justice Souter’s dissenting position that 
advocated less exacting scrutiny of racial gerrymanders than is 
applied to other types of discrimination under the Fourteenth 
Amendment. See Shaw. 113 S.Ct. at 2830. The Shaw majority



70a

rejected his contention.52 Part IV is peppered with the language of 
compelling state interest as applied to the state’s need to comply with 
the Voting Rights Act. The difference between the State’s 
interpretation of Shaw and what Shaw really says lies in the allocation 
of the burden of production. If, as the defendants contend, Voting 
Rights Act concerns are an “explanation” that justify bizarrely drawn 
racial districts, the plaintiffs must prove as part of their case that the 
districts did not comply with the Voting Rights Act. Because, as we 
have concluded, the plaintiffs’ burden of production extends solely to 
the race-consciousness of the districts combined with the disregard of 
traditional districting criteria, then the State has the burden of 
producing evidence of narrowly tailoring to achieve its compelling 
state interest.

Interestingly, Texas does not seriously argue that Districts 18, 
29, and 30 are “harrowly tailored” to fulfill the State’s obligations 
under the Voting Rights Act and would thus withstand the strict 
scrutiny test. Based on the evidence, this would have been nigh 
impossible. The State admits that more traditional districts could 
have been fashioned. At least two proposed redistricting plans for 
Dallas — Senator Johnson’s Plan C500 and Owens-Pate Plan 606 -- 
and two for Houston — Owens-Pate Plan 606 and Dr. Webber’s Plan 
676 — included far more compact, contiguous majority-minority 
districts. Defendants contend, however, that these districts probably 
would have sacrificed one or two incumbent Congressmen, but they 
cannot and do not contend that preserving incumbents rests on the 
same compelling interest footing as compliance with the Voting Rights 
Act. Many witnesses acknowledged that majority-minority districts 
could have been created in Harris and Dallas counties with more 
respect for compactness, contiguity, geography, and neighborhood 
preservation. See Dep. of Johnson at 130-32, 142; 6/28/94 TR. at 2-

For this reason, we reject the argument of the United States that 
“benign” race-conscious districting is subject to intermediate rather than strict 
scrutiny. The United States founds its position in part on Metro Broadcasting v. 
Federal Communications Comm’n.. 497 U.S. 547 (1990), which applied that 
standard to federal antidiscrimination measures. We agree, however, with the 
Shaw remand court that Metro Broadcasting has little to do with this case. See 
Shaw. No. 92-202-C1V-5-BR at n.22 (E.D.N.C. Aug. 1, 1994).



71a

128-129. Under these circumstances, the State has not carried its 
burden of production on the issue of narrow tailoring.

In its post-trial brief, the United States adopts a different 
position, contending not only that the State had a compelling interest 
in complying with the Voting Rights Act but also that Districts 18, 29, 
and 30 are narrowly tailored to further that interest.53 It is not 
obvious to this court that the State54 justifiably feared potential

The United States cites Richmond v. J.A. Croson. 488 U.S. 469, 498-500
(1989), for the proposition, reiterated in Shaw, that a jurisdiction might enact
“affirmative action redistricting” if it had a compelling interest in eradicating
particular instances of racial inequality. No evidence was presented at trial to
support this basis for minority districts, and we will not consider it further.
54

As the State concedes, § 5 of the Act, which implements a racial 
nonretrogression principle in districting, only required the state to preserve extant 
“minority” Districts; it did not require the creation of new minority Districts 29 
and 30. See Beer v. United States. 425 U.S. 130, 141 (1976).

The defendants also assert that if Districts 18, 29, and 30 had not been 
drawn as majority-minority districts, the State would have been vulnerable to a 
vote dilution claim under § 2 of the Voting Rights Act. Further, the Attorney 
General, exercising her responsibility under § 5 of the Act, could have refused to 
preclear the State’s apportionment plan for this reason. Section 2 vote dilution 
claims are proven by establishing the three “ Gingles criteria” and then by showing 
dilution under the totality of the circumstances surrounding a districting scheme. 
See Thornburg v, Gingles. 478 U.S. 30 (1986). The first Gingles criterion is that 
the minority population are sufficiently numerous and geographically compact to 
form a majority in a single-member district. See Growe v. Emison. 113 S.Ct. 
1075, 1084 (1993). This aspect of Gingles. like Shaw, presupposes legislative 
districts that have geographic integrity and satisfy traditional districting standards. 
See, e , g, , Johnson v. DeGrandv. 114 S Ct. 2647, 2655 (1994). That test cannot 
be met under § 2 for Districts 18, 29, and 30. Defendants’ perfunctory and wholly 
unsupported contentions to the contrary are incorrect. Also undermining the 
assertion of § 2 violation is the recent Supreme Court decision in Johnson v. 
DeGrandv. which holds that it is not necessary for a political jurisdiction to 
maximize minority voting strength in order to comply with § 2. See id. at 2661 
As the statute itself says, proportional representation is not its goal or mandate.

Finally, Gingles requires proof that the majority usually vote as a bloc to 
defeat the minority’s preferred candidates. In Texas in the 1990’s, it is no longer 
accurate to assume that this condition of Gingles exists in every case. Johnson v. 
DeGrandv, supra, emphasizes a similar point: “[Tjhere are communities in which



72a

liability under § 2 or § 5 of the Voting Rights Act if it failed to protect 
District 18 and set aside three new districts — Districts 28, 29, and 30 
— for minority Congressmen. Nevertheless, for this and other reasons, 
the Legislature created the districts. According to Shaw, this is 
permissible if the districts are narrowly tailored to comply with Voting 
Rights Act concerns. But Shaw cautions: “A reapportionment plan 
would not be narrowly tailored to the goal of avoiding retrogression if 
the State went beyond what was reasonably necessary to avoid 
retrogression.” Shaw. 113 S.Ct. at 2831. This caution, we assume, 
would also apply to a § 2 prophylactic measure.

The United States’ characterization of Districts 18, 29, and 30 
as narrowly tailored runs afoul of this caution. In the government’s 
view, Texas could draw these districts in just about any bizarre shape 
as long as it attributed their shapes to incumbent protection or another 
“hon-racial” consideration. The United States is also implicitly 
equating incumbent protection with a compelling state interest, an 
utterly unjustifiable argument.

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 of irregularity in shape, making 
allowances for traditional districting criteria.55 The United States, by

minority citizens are able to form coalitions with voters from other racial and 
ethnic groups, having no need to be a majority within a single district in order to 
elect candidates of their choice. Those candidates may not represent perfection to 
every minority voter, but minority voters are not immune from the obligation to 
pull, haul and trade to find common political ground.” Icf; see also. LULAC v. 
Clements, supra. 999 F.2d 831 (5th Cir. 1993) (en banc-) (concluding minority 
judicial candidates defeated not because of race but because of partisanship), cert, 
denied. 64 U.S.L.W. 3471 (1994). What amounts to a ritualistic invocation of § 2 
by the defendants simply proves too much: the possibility that some § 2 claim 
might have prevailed against the state if HB1 had not contained more minority 
districts than the base plan cannot justify these noncompact, noncontiguous 
districts.

55 Regarding this aspect of narrow tailoring, we again register disagreement with 
the two-judge majority that decided Shaw on remand. Those judges conclude that 
the only factors pertaining to the shape and size of a district that bear on narrow 
tailoring are constitutional limits, i.e. compliance with the one person/one vote



73a

deferring heavily to the state’s choice of boundaries, commits narrow 
tailoring to an insignificant role and ignores the dispositive fact that 
alternative plans for Districts 18, 29, and 30 were all much more 
geographically and otherwise logical than the Swiss cheese plans

principle and the right of nonminorities not to have their votes diluted. To these 
limits, however, must be added Shaw’s emphasis on the requirement that a racially 
constructed district must satisfy other neutral districting criteria. The two-judge 
majority simply ignored this point, as Judge Voorhees, dissenting, observes.

The Shaw remand majority apparently concluded that the shape of a 
“voting rights district” is immaterial as long as the state had a sufficient basis 
upon which to believe it might be vulnerable to a § 2 vote dilution claim. This 
conclusion overlooks the Supreme Court’s clear distinction between “what the law 
permits, and what it requires.” Shaw. 113 S.Ct. at 2830. Further, the Shaw 
remand majority describe as dicta the Supreme Court’s observation that the 
deliberate creation of majority-minority districts to remedy past discrimination was 
only constitutionally permissible beyond the framework of the Voting Rights Act if 
the state employed sound districting principles and if the racial group’s residential 
patterns permitted the creation of districts. Shaw. 113 S.Ct. at 2832 (citing United 
Jewish Organizations of Williamsburgh. Inc, v, Carey. 430 U S. 144, 167-68 
(1977) (opinion of White, J.)). We believe these statements bear importantly on 
the “fit” between the state’s compelling interest in addressing Voting Rights 
concern and the form of the districts that must be narrowly tailored to suit them.

Finally, we note that under the reasoning of the Shaw remand majority, a 
bizarrely shaped district that has no grounding in traditional districting criteria 
was held “narrowly tailored,” although it is inconceivable that the same district 
could have been authorized under § 2 and the first prong of the Gingles test. See 
note 54 supra.

Among their reasons for discounting the significance of compactness and 
contiguity for narrow tailoring, the Shaw remand majority denigrate the 
importance of those factors and issue an expression of judicial restraint that is, 
frankly, hard to swallow. We have already defended objective districting criteria. 
Supra at n.43. Moreover, judges are routinely deciding nontraditional questions in 
§ 2 vote dilution cases, among which are the possibility to create “compact and 
contiguous” minority-majority districts. The likelihood of judicial intrusion upon 
the state’s prerogative of districting is the same in both cases. When a § 2 or 
Shaw violation is found, of course, judges must defer as far as possible to the 
legislature’s attempt to solve the problem. See Upham v. Seamon. 456 U.S. 37, 
40-41 (1982). Thus, we believe the Shaw remand majority search in vain for 
policies to support their decision.



74a

chosen by the state. Where obvious alternatives to a racially offensive 
districting scheme exist, the bizarre districts are not narrowly 
tailored.56

From the foregoing discussion, we conclude that Districts 18, 
29, and 30 are the product of unconstitutional gerrymandering and 
that they are not narrowly tailored to further the State’s concern about 
compliance with the Voting Rights Act.

4. Congressional District 28
There is markedly less evidence in the record concerning the 

creation of Congressional District 28, a designedly Hispanic district 
located in the South Texas area. South Texas experienced a dramatic 
growth in population, largely of Hispanic origin, during the 1980’s, 
and it was foreseeable that a new Congressional district would be 
located there. Based on the majority-Hispanic population throughout 
much of South Texas, it is also not surprising that the new district 
would have an Hispanic majority. Then-Senator Tejeda influenced the 
drawing of district lines so that as much of his Bexar County 
constituency as possible would fall within the district, but its 
progression south from Bexar County is similar to the configuration of 
the other Congressional districts in South Texas. When compared 
with the other districts in Texas, Congressional District 28 is not 
highly irregularly shaped. Its fingers do jut into the small cities of 
Seguin and New Braunfels. In so doing, according to the plaintiffs’ 
maps indicating county racial composition, the district excises the

Courts confronted with the question whether a remedial racial 
classification is narrowly tailored to serve its purpose have considered a number of 
factors to be important. These factors include: (1) the efficacy of alternative race- 
neutral measures; (2) the efficacy of alternative, more narrowly-tailored racial 
classifications; (3) the flexibility and duration of the remedy; and (4) the impact of 
the remedy on the rights of third parties. See, e.g.. United States v. Paradise. 480 
U.S. 149, 171 (1987); Local 28. Sheet Metal Workers v. EEOC. 478 U.S. 421, 481 
(1986) (Powell, J., concurring); Fullilove. supra. 448 U.S. at 510-11 (Powell, J., 
concurring), see also Ravitch v. City of New York. 1992 WL 196735 at *7 
(applying these factors to a racial classification used in redistricting); Hays II.

Because we have concluded that Districts 18, 29 and 30 are not narrowly 
tailored to reflect, as far as possible, traditional districting criteria, we need not 
discuss these factors in detail. Our conclusion bears on the first, second, and 
fourth factors.



75a

minority, largely Hispanic populations from those cities. The number 
of voters affected by these extensions is small compared to the size of 
the district. The Legislature took no extraordinary measures that 
render this district so out of line with traditional districting criteria as 
to raise a serious question about racial gerrymandering.

B. Other Congressional Districts

Plaintiffs attack most of the other Congressional districts in the 
State of Texas as having produced deliberate racial segregation of 
voters to subserve the goal of incumbent protection. As we noted 
before, there is an extremely high correlation between the irregular 
features of many of these districts and the racial populations they are 
drawn to include or exclude. See III.C.8 . supra. At trial, Chris 
Sharman generally explained away these divisions by saying that the 
incumbent Congressmen were seeking to corral ‘Democrats” into their 
districts. More candid testimony was provided by Congresswoman 
Eddie Bernice Johnson during the Terrazas case, which preceded the 
issuance of the Supreme Court’s decision in Shaw v, Reno. In 
Terrazas. then-Senator Johnson stated that African-American voters 
from many of these towns had requested to be placed within districts 
of Democrat Congressmen. We conclude that both race and politics 
influenced the divisions of these towns between Congressional 
districts.

It does not follow, however that racial gerrymandering occurred. 
First, with few exceptions, the outlines of the non-Voting Rights 
Congressional districts within the state (except those which are 
contiguous to the districts we have already found unconstitutional), 
are fairly regular or at least not highly irregular apart from the small 
racially distinct appendages. Second, in deciding whether voters have 
been segregated by race, the frame of reference must be considered. It 
is true that voters within individual cities or counties were often 
separated along racial lines into the districts of incumbent Republican 
or Democrat Congressmen. From the standpoint of those districts, 
however, the addition or subtraction of these minority populations was 
not proportionately significant; they also gave the Congressmen a toe­
hold in such cities and effectively doubled the cities’ representation in 
Congress. Further, we cannot say that from the perspective of the 
districts, there was unconstitutional racial gerrymandering.



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V. CONCLUSION

Shaw explained the nature of a racial gerrymandering claim 
under the Fourteenth Amendment. Utilizing Shaw’s precepts, the 
court has carefully analyzed all of the voluminous evidence produced 
by the parties and investigated 24 of Texas’ Congressional Districts. 
Although the State indisputably used racial data in the process of 
Congressional reapportionment throughout the state, and it used the 
data with sophistication and precision, we conclude that only three 
Congressional Districts were unconstitutionally racially 
gerrymandered. Districts 18, 29, and 30 were all designed with highly 
irregular boundaries that take no heed of traditional districting 
criteria; those districts function primarily to include sufficient 
numbers of the favored minority groups and to exclude the disfavored 
groups so as to assure election of one of the favored groups’ members. 
If these districts — tortuously constructed block-by-block and from 
one side of the street to another across entire counties to satisfy the 
desired racial goal — are constitutional, then the State could more 
easily hand each voter a racial identification card and allow him to 
participate in racially separate elections. The exclusively racial 
makeup of these districts harks back to the infamous “white primary,” 
which was constitutionally condemned decades ago. Surely districts 
as race-specific as Districts 18, 29, and 30 have no place in our 
system of government.

Moreover, Districts 18, 29, and 30 were not narrowly tailored to 
fulfill the State’s compelling interest in avoiding liability under § 2 or 
§ 5 of the federal Voting Rights Act.

Based on the foregoing the court hereby
ORDERS that Districts 18, 29, and 30 as enacted in HB1 in 

1991 are declared unconstitutional under the Fourteenth Amendment. 
Further relief, consistent with this opinion, will be considered upon 
written submission by the parties on or before August 26, 1994.57

SIGNED at Houston, Texas, on this the 17th day of August,
1994.

_____________ M._________________
EDITH H. JONES

I

This court reserves the right to amend this opinion up until September 1,
1994.



UNITED STATES CIRCUIT JUDGES

_____________ /§/_________________
DAVID HITTNER

UNITED STATES DISTRICT JUDGE

________________ /s /
MELINDA HARMON 

UNITED STATES DISTRICT JUDGE



78a

HITTNER, District Judge, specially concurring:
I join fully with my colleagues in the unanimous opinion herein 

and specially concur to highlight an area which has the potential to 
evolve into a significant issue in future instances of redistricting.

The plaintiffs in this case did not challenge House Bill l 1 on 
the basis of religious gerrymandering; however, testimony adduced at 
trial definitely indicated that religion did play a role in the creation of 
the Dallas County Congressional Districts.

Although religion has not been the central focus of redistricting 
litigation, the cases that have addressed the issue have repeatedly 
noted that using religion to create congressional districts may be as 
violative of the Fourteenth Amendment as racial considerations.2 It is 
certainly foreseeable that voting districts could be designed to exclude 
or include certain religious groups considered necessary to win an 
election if political candidates can create districts to assure electoral 
success rationalized as “incumbency protection” without regard for 
traditional districting principles.

In the instant case, the State of Texas attempted to legitimize the 
oddly configured Dallas congressional districts by partially attributing 
their contours to religious considerations, rather than solely to racial 
factors. One of the State’s witnesses, Chris Sharman, testified that 
Congressman Martin Frost wanted to exclude certain rural areas from 
his congressional district that he believed would be adverse to him 
because he is Jewish. See 6/29/94 TR. 3-206-09. This type of 
redistricting practice is another example of what the unanimous 
opinion characterizes as the representatives selecting the people rather 
than the people selecting their representatives through the

House Bill 1, the challenged plan, was passed by the second called 
session of the 72nd Texas Legislature and signed into law by the governor on
August 29, 1991.
2

The principle of equality is at war with the notion that District A must be 
represented by a Negro, as it is with the notion that District B must be 
represented by a Caucasian, District C by a Jew, District D by a Catholic, 
and so on. . . That system, by whatever name it is called, is a divisive 
force in the community, emphasizing differences between candidates and 
voters that are irrelevant in the constitutional sense.

Shaw v. Reno. 113 S.Ct. 2816, 2827 (1993) (quoting Justice Douglas’ dissenting 
opinion in Wright v. Rockefeller. 376 U.S. 52, 66-67 (1964)).



79a

balkanization of those groups who may either support or oppose 
them.3 This specific practice offends the principle of a democratic 
election process whereby representatives are elected by their 
constituents because they are the most qualified candidate rather than 
because they are members (or not members) of particular religious 
affiliations.

The idea that race or ethnicity, or language or religion might 
become the basis for distributing voters during the periodic 
redistricting process runs counter to our professed belief in the 
‘oneness’ of American political life and to the belief in 
Democracy itself with its emphasis on the individual citizen. 
There is no one coherent political philosophy, political 
principle, or political program subsumed under such group 
labels as ‘black citizens,’ ‘white citizens,’ ‘Asian citizens,’ or 
‘Hispanic citizens.’”

Turner v, Arkansas. 784 F.Supp. 553, 562 (E D. Ark. 1991).
Further, evidence in this case indicates that Congressional 

District 30 extends to the northern part of Dallas County specifically 
to include the Jewish Community Center and surrounding Jewish 
neighborhoods. Congresswoman Eddie Bernice Johnson expressly 
wanted the Dallas Jewish Community Center included in 
Congressional District 30. See Dep. of Weiser at 144-48; 6/29/94 
TR. 3-190-92. The State’s exhibit 53, a districting map promulgated 
by the State of Texas Attorney General’s Office, depicts 
Congressional District 30, and parts of Congressional Districts 3, 5,

In United Jewish Organization v, Carey. 430 U.S. 144, 185-86 (1977), 
Justice Stewart, concurring in the judgment wrote that:

Although reference to racial composition of a political unit may, under 
certain circumstances, serve as ‘a starting point in the process of shaping 
a remedy’ . . . rigid adherence to quotas, especially in a case like this, 
deprives citizens . . .  the opportunity to have the legislature make a 
determination free from unnecessary bias for or against any racial, ethnic, 
or religious group.

Justice Stewart further added that ‘'mathematical formulas and quotas in districts 
sustain ghettos by marshalling religious groups into enclaves.” (Stewart, J., 
concurring).



80a

6 , 12, 24, and 26, in Denton, Collin, Rockwall, Kaufman, Tarrant, 
and Dallas Counties. This exhibit, entered into evidence by the State, 
expressly designates the ‘Dallas Jewish Community Center” in bold, 
red capital letters, with an arrow extending into a portion of 
Congressional District 30 wherein the Jewish religious symbol — the 
Star of David — prominently appears on the districting map; this is the 
only such designation on this entire exhibit aside from official district 
and county identifications. Johnson believed that not only did she 
have the support of members of the Dallas Jewish community but that, 
in the event that another African-American candidate ran against her, 
she would have the support of white, Jewish voters. See Dep. of 
Weiser at 112, 144-48; 6/29/94 TR. 3-190-92.

With future sophisticated advances in computer technology, 
legislators no doubt may also be able to determine the religious 
affiliation of households. This practice of custom-building districts, 
by hand picking which groups, including religious groups, should be 
included in or excluded from a district, directly implicates equal 
protection principles.

SIGNED at Houston, Texas, on this the 17th day of August,
1994.

_____________ /§/_________________
DAVID HITTNER

UNITED STATES DISTRICT JUDGE



81a

APPENDIX



82a

TEXAS CONGRESSIONAL DISTRICT 18



83a

TEXAS CONGRESSIONAL DISTRICT 29





85a

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF TEXAS 

HOUSTON DIVISION

Filed September 22, 1994

AL VERA, et al„ 
Plaintiffs,

§
§

v.
§
§ Civ. Action No. H-94-0277
§

ANN RICHARDS, et al„ 
Defendants, §

§

NOTICE OF APPEAL TO THE SUPREME COURT OF THE

Pursuant to Rule 18.1 of the Rules of the Supreme Court of the 
United States, notice is hereby given that the state defendants in their 
official capacities — Ann W. Richards as the Governor, Bob Bullock 
as the Lieutenant Governor, James E. “Pete” Laney as Speaker of the 
House, Dan Morales as the Attorney General, and Ron Kirk as the 
Secretary of State of Texas — appeal to the Supreme Court of the 
United States from ^[2, 3, and 5 (plus the injunctive provision added 
by the Court’s nunc pro tunc amended order of September 19, 1994) 
of the three-judge Court’s Order of September 2, 1994 (subsuming 
within it the Court’s declaration of the unconstitutionality of Texas 
Congressional District 18, 29, and 30 on page 93 of its Opinion of 
August 17, 1994).

This appeal is taken pursuant to 28 U.S.C. § 1253.

UNITED STATES

Respectfully submitted,

DAN MORALES 
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General



86a

_____________ (si________________
RENEA HICKS 
State Solicitor 
USDC ID No. 9490

P.O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 
(512) 463-2085 
FAX: (512) 463-2063

ATTORNEYS FOR STATE 
DEFENDANTS

CERTIFICATE OF SERVICE

I certify that I forwarded a copy of the foregoing document by 
first class U.S. mail, postage prepaid, to each of the following on this 
21st day of September, 1994: Paul Loy Hurd, P.O. Box 2190, 1101 
Royal Avenue, Monroe, Louisiana 71207; Gaye L. Hume, Voting 
Section, Civil Rights Division, Department of Justice, P.O. Box 
66128, Washington, D.C. 20035-6128; Penda D. Hair, NAACP Legal 
Defense & Educational Fund, Inc., 1275 K Street, N.W., Suite 301, 
Washington, D.C. 20005; Luis Wilmot/Judith Sanders-Castro, 
MALDEF, 140 E. Houston, Suite 300, San Antonio, Texas 78205; 
and the Solicitor General, Department of Justice, Washington, D.C. 
20530.

/s/
Renea Hicks



87a

VOTING RIGHTS ACT PROVISIONS

Section 2 of the Voting Rights Act of 1965, as amended, 42 
U.S.C. 1973, provides:

§ 1973: (a) No voting qualification or prerequisite to voting or standard, 
practice, or procedure shall be imposed or applied by any State or 
political subdivision in a manner which results in a denial or abridgement 
of the right of any citizen of the United States to vote on account of race 
or color, or in contravention of the guarantees set forth in section 
1973b(f)(2) of this title, as provided in subsection (b) of this section.
(b) A violation of subsection (a) of this section is established if, based on 
the totality of circumstances, it is shown that the political processes 
leading to nomination or election in the State or political subdivision are 
not equally open to participation by members of a class of citizens 
protected by subsection (a) of this section in that its members have less 
opportunity than other members of the electorate to participate in the 
political process and to elect representatives of their choice. The extent to 
which members of a protected class have been elected to office in the State 
or political subdivision is one circumstance which may be considered: 
Provided, That nothing in this section establishes a right to have members 
of a protected class elected in numbers equal to their proportion in the 
population.

Section 5 of the Voting Rights Act of 1965, as amended, 42 
U.S.C. 1973c, provides in pertinent part:

§ 1973c: Whenever a State or political subdivision with respect to which 
the prohibitions set forth in section 1973b(a) of this title based upon 
determinations made under the . . . third sentence of section 1973b(b) of 
this title are in effect shall enact or seek to administer any voting 
qualification or prerequisite to voting, or standard, practice, or procedure 
with respect to voting different from that in force or effect on November 
1, 1972, such State or subdivision may institute an action in the United 
States District Court for the District of Columbia for a declaratory 
judgment that such qualification, prerequisite, standard, practice, or 
procedure does not have the purpose and will not have the effect of 
denying or abridging the right to vote on account of race or color, or in



88a

contravention of the guarantees set forth in section 1973b(f)(2) of this 
title, and unless and until the court enters such judgment no person shall 
be denied the right to vote for failure to comply with such qualification, 
prerequisite, standard, practice, or procedure: Provided, That such
qualification, prerequisite, standard, practice or procedure may be 
enforced without such proceeding if the qualification, prerequisite, 
standard, practice, or procedure has been submitted by the chief legal 
officer or other appropriate official of such State or subdivision to the 
Attorney General and the Attorney General has not interposed an 
objection within sixty days after such submission, or upon good cause 
shown, to facilitate an expedited approval within sixty days after such 
submission, the Attorney General has affirmatively indicated that such 
objection will not be made. Neither an affirmative indication by the 
Attorney General that no objection will be made, nor the Attorney 
General’s failure to object, nor a declaratory judgment entered under this 
section shall bar a subsequent action to enjoin enforcement of such 
qualification, prerequisite, standard, practice, or procedure . . . .