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DOJ's Texas Redistricting Filings

DOJ's Texas Redistricting Filings

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Published by: tpmdocs on Oct 26, 2011
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11/18/2011

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1IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIASTATE OF TEXAS,Plaintiff,v.UNITED STATES OF AMERICA and ERIC H.HOLDER, JR., in his official capacity as AttorneyGeneral of the United States,Defendants.)))))))))))))Civil Action No. 1:11-cv-1303(RMC-TBG-BAH)Three-Judge Court
UNITED STATES’ STATEMENT OF GENUINE ISSUES
 Pursuant to Local Rule 7(h), the United States submits the following statement of genuinedisputed material facts in response to Plaintiff’s Motion for Summary Judgment. Because theCourt has granted declaratory judgment concerning the State Board of Education plan,
 see
Sept.22 Minute Order No. 1, and because the United States has admitted that Plaintiff is entitled to adeclaratory judgment that the Senate plan complies with Section 5 of the Voting Rights Act,
 see
U.S. Answer ¶ 46, this statement addresses only the proposed Congressional and Houseredistricting plans.
Prohibited Effect under Section 5
1.
 
There is a genuine issue concerning the proper methodology to determine “the ability of [protected] citizens to elect their preferred candidates of choice.” 42 U.S.C. § 1973c(d).2.
 
The State of Texas indicates that it has conducted its determination of retrogression under Section 5 through the use of population statistics alone.
See
Statement of Material Factsin Support of Plaintiff’s Motion for Summary Judgment (“Tex. 7(h) Statement”) 4-8.
Case 1:11-cv-01303-RMC-TBG-BAH Document 79-1 Filed 10/25/11 Page 1 of 17
 
23.
 
For Hispanic communities, Texas uses a fifty percent citizen voting-age populationcutoff; for Black communities, the State uses a forty percent voting-age populationcutoff.
See
Tex. 7(h) Statement at 7-8. The State does not assess whether a coalition of minority voters has the ability to elect its candidate of choice in any district.4.
 
Population cutoffs do not provide a valid indicator of minority electoral opportunity or the existence of ability to elect.
See
Handley Cong. Rep. at 2-3; Handley House Rep. at2-3.5.
 
While the demographic composition of an electoral district is a valid starting point for ananalysis of ability to elect, such an approach alone, without analysis to determine if such population cutoffs provide a valid indication of a minority community’s ability to elect itscandidate of choice, fails to take into account the actual electoral performance of thedistricts.
See
Handley Cong. Rep. at 2-3; Handley House Rep. at 2-3. Analysis of election performance – conducted over time with a view toward voter turnout, racial polarization, and other relevant factors – provides the proper measure of ability to elect.
See
Handley Cong. Rep. at 2-3; Handley House Rep. at 2-3.6.
 
In contrast to the State’s Statement of Material Facts, the State’s expert, Dr. John Alford,appears to agree that the proper analysis under the Section 5 retrogression standard is “amore ‘functional’ analysis of the performance of the districts in terms of electingcandidates of choice.”Alford Rep. at 4.7.
 
The election-focused analysis conducted by the United States’ effect expert, Dr. LisaHandley, proceeds beyond population figures to focus on endogenous elections – elections for the offices elected from the district at issue – and exogenous elections – elections for offices other than the one elected from the district – to create an
Case 1:11-cv-01303-RMC-TBG-BAH Document 79-1 Filed 10/25/11 Page 2 of 17
 
3“effectiveness index” that estimates the ability of minority communities to elect their candidates of choice in particular districts. This analysis includes a review of datacreated by the State, including a district-by-district racial bloc voting analysis. HandleyCong. Rep. at 3-4; Handley House Rep. at 3-4.
Texas House of Representatives
8.
 
An election-oriented functional analysis of the proposed State House plan leads to theconclusion that the plan is retrogressive under Section 5. There are 50 minority districtsin the benchmark plan that offer minority voters an ability to elect.
See
Handley HouseRep. at 1. The United States contends that there are only 45 minority districts in the proposed plan that offer minority voters an ability to elect.
See
Handley House Rep. at 1.9.
 
The United States contends that Districts 33, 35, and 117 provide Hispanic voters anability to elect in the benchmark plan but not in the proposed plan. District 149 providesminority voters an ability to elect in the benchmark plan, and it does not provide minorityvoters with an ability to elect in the proposed plan. District 41 provides minority votersan opportunity to elect a candidate of choice in the benchmark. The State has failed tomeet its burden of proof of showing that District 41 provides an ability to elect in the proposed plan because of the data issues surrounding the precinct splits. See HandleyRep. at 9-10.10.
 
The State has asserted that there are forty-one districts in the benchmark State House planthat offer minorities the ability to elect candidates of choice: thirty that provide thatability to Hispanic voters – Districts 31, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 74, 75,76, 77, 78, 79, 80, 104, 116, 117, 118, 119, 123, 124, 125, 140, 143, 145 – and eleventhat provides that ability to Black voters – Districts 22, 95, 100, 109, 110, 111, 131, 139,
Case 1:11-cv-01303-RMC-TBG-BAH Document 79-1 Filed 10/25/11 Page 3 of 17

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