SIDNEY A. FITZWATER, UNITED STATES DISTRICT JUDGE.
This is a suit by Anglo voters of Dallas County, Texas who maintain that their rights under § 2 of the Voting Rights Act of 1965 ("VRA"), 52 U.S.C. § 10301 et seq., and the Equal Protection Clause of the Fourteenth Amendment have been violated by the absence of a second county commissioner district that is capable of electing a representative of their choice: an Anglo Republican. Following a bench trial, and for the reasons explained,
Plaintiffs Anne Harding ("Harding"), Gregory R. Jacobs ("Jacobs"), Holly Knight Morse ("Morse"), and Johannes Peter Schroer ("Schroer"), Anglo residents
Dallas County is governed by a Commissioners Court comprised of four county commissioners, who are elected from single member districts, and a county judge, who is elected countywide. See Tex. Const. art V, § 18(b). Following the 2010 Census, Dallas County Judge Clay Lewis Jenkins ("Judge Jenkins") and then-county commissioners Maurine Dickey ("Commissioner Dickey"), Mike Cantrell ("Commissioner Cantrell"), John Wiley Price ("Commissioner Price"), and Dr. Elba Garcia ("Commissioner Garcia") determined that it was necessary to redraw district lines because the map drawn after the prior census (the "Benchmark Map")
The Commissioners Court retained J. Gerald Hebert, Esquire ("Hebert") and Rolando L. Rios, Esquire ("Rios") as out-side redistricting counsel. Hebert, in turn, employed Matt Angle ("Angle"), an expert on North Texas geography and demographics, to assist in drawing and presenting redrawn district maps for consideration. During an executive session, the Commissioners Court reviewed the configuration, demographics, and political performance of the Benchmark Map and shared their various redistricting goals (including, for example, Commissioner Dickey's desire that there be a "conservative," or "Tea Party" district). They directed Hebert and Rios to draft and present specific redistricting criteria for the Commissioners Court to consider, and they directed Angle to configure demonstration plans for their review.
The Commissioners Court unanimously adopted Commissioner Precinct Redistricting Criteria ("Redistricting Criteria") that they determined "would help facilitate public participation and help ensure that any adopted redistricting plans will be consistent with all applicable law." Ps. Tr. Ex. 15 at 1.
Using the Redistricting Criteria, Angle prepared four demonstration maps that he presented to the Commissioners Court during a closed session meeting. After considering the merits of each, the Commissioners decided to present only one map ("Map A"), the predecessor to the map that was ultimately adopted, to the public for consideration. The Commissioners Court then provided notice of, and held a
During the redistricting process, Commissioner Dickey, a Republican, announced that she would not seek reelection. Before the Commissioners Court voted on Map A, Commissioner Price contacted Angle and asked him to prepare an amendment that, inter alia, switched the numbering of CCDs 1 and 2 and adjusted the boundaries between CCDs 1 and 2 in the Oak Lawn area in order to place Commissioner Dickey's home in the renumbered CCD 1. As a result of the exchange in district numbers, it was unnecessary for incumbent Commissioner Cantrell to stand for reelection until 2014 (rather than 2012), and Commissioner Dickey's vacated seat was up for election in 2012.
By a vote of three to one (Commissioner Dickey did not vote), the Commissioners Court adopted the 2011 Map, which Angle had drawn, as the new commissioner districts. The Commissioners Court then submitted the 2011 Map to the U.S. Department of Justice for preclearance under § 5 of the VRA, which was then still in effect.
Ps. Tr. Ex. 16 at 4.
The current composition of the Commissioners Court, elected under the 2011 Map, is as follows: Dr. Theresa Daniel ("Commissioner Daniel") (CCD 1, Democrat); Commissioner Cantrell (CCD 2, Republican); Commissioner Price (CCD 3, Democrat); Commissioner Garcia (CCD 4, Democrat); and Judge Jenkins (Democrat). Two of the four commissioners (Commissioners Cantrell and Daniel) are Anglo, as is Judge Jenkins.
Plaintiffs Harding, Jacobs, Schroer, Ray Huebner ("Huebner"), and Morgan McComb ("McComb")
Before turning to the merits, the court addresses defendants' challenge to plaintiffs' standing.
"Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by statute, lack the power to adjudicate claims." Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998). It is well settled that "the issue of standing is one of subject matter jurisdiction." Cobb v. Cent. States, 461 F.3d 632, 635 (5th Cir. 2006). The doctrine of standing addresses the question of who may properly bring suit in federal court, and "is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). It "involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). To establish standing, a plaintiff must meet both constitutional and prudential requirements. See, e.g., Procter & Gamble Co. v. Amway Corp., 242 F.3d 539, 560 (5th Cir. 2001).
The only issue in this case is constitutional standing, which requires that a litigant establish three elements: (1) injury-in-fact that is concrete and actual or imminent, not hypothetical; (2) a fairly traceable causal link between the injury and the defendant's actions; and (3) that the injury will likely be redressed by a favorable decision. E.g., Little v. KPMG LLP, 575 F.3d 533, 540 (5th Cir. 2009). To obtain injunctive relief, a plaintiff must be "likely to suffer future injury." City of L.A. v. Lyons, 461 U.S. 95, 105, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). "Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief[.]" O'Shea v. Littleton, 414 U.S. 488, 495, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). The threat of future injury to the plaintiff "must be both real and immediate, not conjectural or hypothetical." Lyons, 461 U.S. at 102, 103 S.Ct. 1660 (internal quotation marks omitted).
Defendants maintain that plaintiffs have failed to offer any evidence that they suffered a cognizable injury — i.e., a particularized harm they experienced on account of their race — that is redressable by their legal claims. They contend that
Ds. Post-Trial Br. 9.
Plaintiffs respond that they clearly have standing to bring this action because the 2011 Map dilutes their voting power, intentionally and in effect, denying Anglos representation proportional to their CVAP. Plaintiffs contend that because the 2011 Map packs Anglos into CCD 2 and cracks them across the rest of the county, "[a]s long as the Plaintiffs are a member of that diluted racial group, each may challenge the district in which they live and the entire `redistricting plan that generated this harm.'" Ps. Br. 9.
The court has twice addressed the question of standing in this case, albeit in the context of whether plaintiffs have pleaded standing, not whether they have proved standing. "The facts necessary to establish standing, however, must not only be alleged at the pleading stage, but also proved at trial." Gill v. Whitford, ___ U.S. ___, 138 S.Ct. 1916, 1931, 201 L.Ed.2d 313" (2018) (citing Lujan, 504 U.S. at 561, 112 S.Ct. 2130)).
Before trial, the court held that the alleged dilution in plaintiffs' voting strength through the "packing and cracking" of Anglo voters in Dallas County constituted a sufficiently cognizable injury-in-fact to challenge the 2011 Map under the VRA or the Equal Protection Clause of the Fourteenth Amendment. See Harding II, 2018 WL 1157166, at *6, 7; Harding v. Cnty. of Dall., Tex., 2015 WL 11121002, at *1 (N.D. Tex. May 28, 2015) (Fitzwater, J.). At trial, plaintiffs proved that the voting power of Anglos residing in CCD 2 — including plaintiff Morse — has been "wasted" under the 2011 Map because 42.7% of the Dallas County Anglo CVAP, according to the 2010 Census, is "packed" into CCD 2, creating an Anglo supermajority (under the 2011 Map, 69.8 % of CCD 2's CVAP is Anglo) that is well beyond the number needed for an Anglo-preferred candidate to be elected. Plaintiffs have also established that the voting strength of Anglos residing on CCDs 1, 3, and 4 — including plaintiffs Harding, Jacobs, and Schroer — is diluted because the remaining 57.2 % of the Dallas County Anglo CVAP is "cracked" across the remaining CCDs (21.7 % in CCD 1, 17.3 % in CCD 3, and 18.2 % in CCD 4), spreading the remaining Anglo voters sufficiently thin to prevent them from ever electing their preferred candidates.
By contrast, as explained above, the plaintiffs in the instant case have alleged and proved that they are Anglos and that each resides in a district where, as a result of alleged "cracking and packing," the voting strength of the Anglo CVAP has been diluted.
Defendants also maintain that plaintiffs cannot meet the "redressability" requirement of constitutional standing. They posit that because plaintiffs' "proposed plan would reduce their opportunities to elect their candidates of choice (Republicans),... the relief they seek would not redress their (nonexistent) injuries." Ds. Post-Trial Br. 9. Defendants' argument, however, goes to the merits of plaintiffs' claims rather than to the ability of the court to address plaintiffs' alleged injury. Plaintiffs have established a judicially cognizable injury — that the 2011 Map dilutes the strength of their vote through the cracking and packing of Anglo Dallas County CVAP — that is capable of being redressed by the relief they seek: a declaration that the 2011 Map is unconstitutional and violates the VRA, and an injunction prohibiting defendants from implementing the 2011 Map and requiring defendants or the court to create a replacement map that contains a second Anglo-opportunity CCD. See, e.g., Three Expo Events, L.L.C. v. City of Dallas, Tex., 182 F.Supp.3d 614, 621 (N.D. Tex. 2016) (Fitzwater, J.) (concluding that redressability element of standing
Accordingly, the court concludes that plaintiffs have established by a preponderance of the evidence that they have Article III standing to bring their VRA and equal protection claims based on the dilution of their voting power that resulted from the 2011 Map. Although the court concludes below that plaintiffs' vote dilution claims fail on the merits, it nevertheless holds that plaintiffs have sufficiently established an injury-in-fact for standing purposes by pleading a judicially cognizable injury, i.e. vote dilution, and by adducing evidence that the Anglo population has been dispersed unevenly (concentrated in CCD 2 and spread out among the other CCDs) throughout the four CCDs.
But even if the court is in error in holding that plaintiffs have proved Article III standing, the outcome of this case is the same. Regardless whether for lack of standing or for lack of merit, plaintiffs' case must be dismissed.
The court now turns to the merits and addresses plaintiffs' vote dilution claim under § 2 of the VRA.
"In 1982 Congress substantially revised § 2 of the Voting Rights Act to clarify that a violation requires evidence of discriminatory effects alone, and to make clear that proof of discriminatory intent is not required to establish a violation of Section 2." Benavidez v. Irving Indep. Sch. Dist., Tex., 690 F.Supp.2d 451, 455 (N.D. Tex. 2010) (Fitzwater, C.J.) (internal quotation marks omitted) (quoting League of United Latin Am. Citizens # 4434 (LULAC) v. Clements, 986 F.2d 728, 741 (5th Cir. 1993) ("LULAC")). Section 2(b) now provides that the Act is violated if,
52 U.S.C. § 10301(b).
In Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), the Supreme Court first considered the 1982 amended version of § 2, setting out the current framework for analyzing § 2 cases.
Benavidez, 690 F.Supp.2d at 455 (citations omitted) (quoting Gingles, 478 U.S. at 50-51, 106 S.Ct. 2752). "Failure to establish any one of the Gingles factors precludes a finding of vote dilution, because these circumstances
Id. at 456 n.7 (quoting LULAC, 986 F.2d at 747). "In conducting this broad inquiry, a court must be `flexible in its totality inquiry and guided by factors drawn from the Senate Judiciary Committee report on the 1982 amendments to the Voting Rights Act and reference Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973).'"
Under the first prong of Gingles, plaintiffs must prove that the Anglo population in Dallas County is "sufficiently large and geographically compact to constitute a majority in a single member district." LULAC, 986 F.2d at 742. To satisfy this requirement, plaintiffs must establish that there is a potential single member district in which a majority of the CVAP is Anglo. See id. at 743; Reyes v. City of Farmers Branch, Tex., 586 F.3d 1019, 1023 (5th Cir. 2009) (holding that only CVAP is relevant in evaluating first prong of Gingles). In Bartlett v. Strickland, 556 U.S. 1, 129 S.Ct. 1231, 173 L.Ed.2d 173 (2009) (plurality opinion), the Supreme Court considered the "minimum-size question," concluding that the majority-minority rule "relies on an objective, numerical test: Do minorities make up more than 50 percent of the voting-age population in the relevant geographic area?" Id. at 13, 18, 129 S.Ct. 1231. "That rule provides straightforward guidance to courts and to those officials charged with drawing district lines to comply with § 2." Id. This requirement is essential to demonstrate that "minority voters possess the potential to elect representatives[.]" Gingles, 478 U.S. at 50 n.17, 106 S.Ct. 2752.
Plaintiffs rely on the expert testimony of Peter Morrison, Ph.D. ("Dr. Morrison")
Remedial Plan (2018 implementation) District Total Pop. Citizen Voting-age Population 2010-14 (2010) Total White Black Hispanic All otherNumber 1 575,706 293,040 111,218 56,038 110,249 15,535 2 601,102 387,620 252,720 50,447 54,635 29,818 3 597,941 365,420 81,808 207,452 67,392 8,768 4 593,390 364,095 200,635 60,659 70,128 32,673 County 2,368,139 1,410,175 646,381 374,596 302,404 86,794 Total Total deviation from ideal: 4.29%Share of Total CVAP 1 100% 38.0% 19.1% 37.6% 5.3% 2 100% 65.2% 13.0% 14.1% 7.7% 3 100% 22.4% 56.8% 18.4% 2.4% 4 100% 55.1% 16.7% 19.3% 9.0% County 100% 45.8% 26.6% 21.4% 6.2% Total Sources: 2010 Census, PL94-171 file; 2014 5-year ACS file.
Ps. Tr. Ex. 68 at 12. Under Dr. Morrison's Remedial Plan, Anglos constitute more than 50% of the CVAP in two of the four commissioner districts (i.e., CCDs 2 and 4 in the Remedial Plan).
Under the second and third prongs of Gingles, plaintiffs must prove that Anglo voters are "politically cohesive" and that the non-Anglo majority "votes sufficiently as a bloc to enable it — in the absence of special circumstances, such as the minority candidate running unopposed — usually to defeat the minority's preferred candidate." Gingles, 478 U.S. at 51, 106 S.Ct. 2752 (citations omitted). "Racially polarized voting, i.e., `where there is a consistent relationship between [the] race of the voter and the way in which the voter votes,' is relevant to a vote dilution claim." Fabela, 2012 WL 3135545, at *8 (alteration in original) (some internal quotation marks omitted) (quoting Gingles, 478 U.S. at 53 n.21 & 56, 106 S.Ct. 2752). It tends to prove that the "minority group members constitute a politically cohesive unit," under the second Gingles prong, and that they are unable to elect representatives of their choice because, under the third Gingles prong, the majority group is similarly politically cohesive and votes "sufficiently as a bloc usually to defeat the minority's preferred candidates." Gingles, 478 U.S. at 56, 106 S.Ct. 2752; see also, e.g., Westwego Citizens for Better Gov't v. City of Westwego, 872 F.2d 1201, 1207 (5th Cir. 1989) ("Evidence of racially polarized voting `is the linchpin of a section 2 vote dilution claim' and is relevant to establishing
Id. at 56 (citations omitted).
To prove the second and third prongs of Gingles, plaintiffs rely on the expert report of M.V. (Trey) Hood III, Ph.D. ("Dr. Hood"). In his report, Dr. Hood analyzes election results from six contested endogenous elections (i.e., county commissioner elections from 2006, 2010, 2012, and 2016) and from three
To estimate the share of each racial/ethnic group voting for a candidate in a specific contest, Dr. Hood relies on what he considers to be two commonly used statistical techniques for evaluating § 2 vote dilution claims: Ecological Regression ("ER") and Ecological Inference ("EI"). Dr. Hood's findings with respect to the commissioner elections he considered are summarized in the following tables:
2006 County Commissioners Court Election, District 4 Candidate Anglo Black Hispanic Other Mayfield * 76.6% (ER) 0% (ER) 20.6% (ER) 66.8% (ER) (Republican) 75.6% (EI) 1.9% (EI) 19.0% (EI) 61.1% (EI) Renfroe 23.4% (ER) 100% (ER) 79.4% (ER) 33.2% (ER) (Democrat) 24.4% (EI) 98.1% (EI) 81.0% (EI) 38.9% (EI)* Mayfield won this election.
2010 County Commissioners Court Election, District 4 Candidate Anglo Black Hispanic Other Mayfield 92.2% (ER) 0% (ER) 23.7% (ER) 46.1% (ER) (Republican) 93.5% (EI) 0.3% (EI) 20.4% (EI) 38.9% (EI) Garcia* 4.5% (ER) 100% (ER) 72.9% (ER) 50.1% (ER) (Democrat) 3.6% (EI) 98.7% (EI) 75.6% (EI) 52.9% (EI) Miles 3.4% (ER) 0.3% (ER) 3.4% (ER) 3.8% (ER) (Libertarian) 2.9% (EI) 1.0% (EI) 4.0% (EI) 8.2% (EI)* Garcia won this election.
2012 County Commissioners Court Election, District 1 Candidate Anglo Black Hispanic Other Miller 69.9% (ER) 0% (ER) 25.2% (ER) 51.5% (ER) (Republican) 70.8% (EI) 0.8% (EI) 17.9% (EI) 47.6% (EI) Daniel * 30.1% (ER) 100% (ER) 74.8% (ER) 48.5% (ER) (Democrat) 29.2% (EI) 99.2% (EI) 82.1% (EI) 52.4% (EI)* Daniel won this election.
2012 County Commissioners Court Election, District 3 Candidate Anglo Black Hispanic Other Lingerfelt 85.0% (ER) 0% (ER) 22.2% (ER) 88.8% (ER) (Republican) 81.1% (EI) 0.4% (EI) 22.4% (EI) 59.3% (EI) Price* 15.0% (ER) 100% (ER) 77.8% (ER) 11.2% (ER) (Democrat) 18.9% (EI) 99.6% (EI) 77.6% (EI) 40.7% (EI)* Price won this election.
2016 County Commissioners Court Election, District 1 Candidate Anglo Black Hispanic Other Rayshell 63.0% (ER) 0% (ER) 21.5% (ER) 39.1% (ER) (Republican) 62.0% (EI) 1.4% (EI) 21.1% (EI) 44.4% (EI) Daniel* 37.0% (ER) 100% (ER) 78.5% (ER) 60.9% (ER) (Democrat) 38.0% (EI) 98.6% (EI) 78.9% (EI) 55.6% (EI)* Daniel won this election.
2016 County Commissioners Court Election, District 3 Candidate Anglo Black Hispanic Other Russell 72.5% (ER) 0.0% (ER) 18.4% (ER) 100% (ER) (Republican) 77.6% (EI) 0.2% (EI) 13.3% (EI) 53.4% (EI) Price* 19.0% (ER) 99.7% (ER) 73.8% (ER) 4.1% (ER) (Democrat) 14.9% (EI) 98.8% (EI) 76.5% (EI) 36.1% (EI) Hendricks 8.5% (ER) 2.8% (ER) 7.9% (ER) 0.0% (ER) (Libertarian) 7.5% (EI) 1.0% (EI) 10.2% (EI) 10.5% (EI)* Price won this election.
See Ps. Tr. Ex. 69 at 7-10.
Dr. Hood also analyzed the "exogenous, but closely related" County Judge elections from 2006, 2010, and 2014, offering evidence that Anglo support for the Republican candidate in these three elections ranged from 60.9% to 94.4%, with a mean of 72.98%.
The purpose of the Gingles analysis is to "establish that `the minority [group] has the potential to elect a representative of its own choice' in a possible district, but that racially polarized voting prevents it from doing so in the district as actually drawn because it is `submerg[ed] in a larger [majority race] voting population.'" Cooper v. Harris, ___ U.S. ___, 137 S.Ct. 1455, 1470, 197 L.Ed.2d 837 (2017) (emphasis and some alterations added) (quoting Growe v. Emison, 507 U.S. 25, 40, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993)). Conversely, where the minority group is either too small or insufficiently compact or cohesive to have any real opportunity to elect a candidate of its choice in a possible district, there has been no violation of § 2.
Gingles, 478 U.S. at 50 n.17, 106 S.Ct. 2752.
Abbott v. Perez, ___ U.S. ___, 138 S.Ct. 2305, 2332, 201 L.Ed.2d 714 (2018); see id. ("So if Texas could not create two performing districts in Nueces County ... the logical result is that Texas did not dilute the Latino vote."); see also, e.g., Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 480, 117 S.Ct. 1491, 137 L.Ed.2d 730 (1997) ("Because the very concept of vote dilution implies — and, indeed, necessitates — the existence of an `undiluted' practice against which the fact of dilution may be measured, a § 2 plaintiff must also postulate a reasonable alternative voting practice to serve as the benchmark `undiluted' voting practice." (citing Holder v. Hall, 512 U.S. 874, 881, 114 S.Ct. 2581, 129 L.Ed.2d 687 (1994))).
In the present case, even if the court assumes that plaintiffs have satisfied each of the three Gingles prongs,
In their Remedial Plan, plaintiffs propose a map in which Anglos constitute a majority (65.2% and 55.1%) in two districts (Remedial Plan districts 2 and 4, respectively). In creating these two Anglo opportunity districts, however, plaintiffs have failed to account for the undisputed facts that roughly 23% of Dallas County's Anglo population votes for Democrat candidates and that a large portion of these Anglo Democrats reside in Remedial Plan districts 2 and 4.
Defendants' expert, Angle, concludes in his October 13, 2017 Report ("Rebuttal Report")
Angle begins with Remedial Plan district 2, explaining that rather than extending east along the northern boundary of Dallas County, taking in reliably Republican neighborhoods before moving south to pick up north Dallas and the Park Cities, Remedial Plan district 2 includes the Democrat neighborhoods around Love Field, south Richardson, Hamilton Park, and Oak Lawn. The proposed district removes approximately 219,258 persons from current CCD 2, 46.5% of whom supported Democrat candidate Hillary Clinton ("Secretary Clinton") for President in the 2016 General Election, and 43.9% of whom supported Democrat candidate Lupe Valdez ("Sheriff Valdez") for Sheriff in the 2016 General Election. And it adds approximately 260,209 persons who were not included in current CCD 1, 67.7% of whom supported
Plaintiffs' other proposed Anglo district, Remedial Plan district 4, begins in the relatively strong Republican area of north Richardson, but extends south to include nearly all of the marginally Democrat suburb of Mesquite, west to include the strongly Democrat city of Balch Springs, and westward to I-45, picking up parts of the Democrat suburbs of Wilmer and Hutchins. In configuring Remedial Plan district 4, plaintiffs have removed approximately 354,831 persons from current CCD 2. Of the removed population, 49.2% supported Secretary Clinton in the 2016 General Election, and 44.1% supported Sheriff Valdez. Of the approximately 373,782 persons added to Remedial Plan district 4, 57.7% supported Secretary Clinton and 57.4% supported Sheriff Valdez in the 2016 General Election.
In sum, Angle persuasively explains that districts 2 and 4 in the Remedial Plan split the neighborhoods in the northern part of Dallas county that most reliably support Republicans and add to each district neighborhoods with growing minority populations and growing Democrat strength.
Angle opines that, had the Remedial Plan been adopted by the Commissioners Court in 2011, it is likely that Democrat party leaders would have targeted all four districts, and it is possible that all four commissioner districts might now be represented by Democrats. To support this prediction, Angle compares election results from the 2016 General Election
2011 Map (Current Commissioners Court) District Sheriff Sheriff President President Democrat Republican Democrat Republican 1 66.4% 33.6% 65.4% 30.3% 2 44.1% 55.9% 45.9% 49.2% 3 75.4% 24.6% 73.9% 23.4% 4 68.1% 31.9% 66.0% 30.1%
Remedial Plan 19 District Sheriff Sheriff President President Democrat Republican Democrat Republican 1 66.3% 33.7% 64.0% 32.1% 2 50.6 49.4 52.8% 42.2% 3 83.1 16.9 81.7% 15.6% 4 50.8% 49.2% 49.8% 46.0%
Defendants' political science expert, Matthew Barreto, Ph.D., similarly opines that plaintiffs' proposed Remedial Plan would lead to a decrease in the opportunities for Anglo Republican voters, explaining in his October 13, 2017 Rebuttal Report:
Ds. Tr. Ex. 63 at 11-12.
Defendants posit that plaintiffs have unsuccessfully tried to craft their Remedial Plan using the approximately 23% of Anglos who historically support Democrats along with the remainder who support Republicans to meet a bare 50% Anglo CVAP threshold in two districts. Defendants argue, and the court agrees, that the only evidence the court has before it shows that doing this results in two districts that will likely perform for Democrats. Simply put, although there may be a sufficient number of Anglos residing in Dallas County to draw two districts with Anglo CVAP majorities, because approximately 23% of Anglos in the county typically support Democrats, and because all Anglos are not concentrated in one area of the County, dividing up the Anglo population that is concentrated in north Dallas County between two districts in an area where Democrat-leaning African American and Hispanic voters also live results in two districts that are likely to elect Democrats.
Plaintiffs contend that they do not have to prove "functionality" in order to prevail on their § 2 claim, but, instead, they only have to show that an alternate map could be drawn that "guarantees the right of equal access without dilution." Closing Arguments Tr. 27. They cite Johnson v. De Grandy, 512 U.S. 997, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994), and Fifth Circuit authority for the proposition that they "need not show that Anglos will ultimately succeed at the polls if their demonstrative map (or one like it) were enacted," and that "[t]he goal of § 2 is to guarantee minorities an equal opportunity, through a fair electoral process." Ps. Post-Trial Br. 28-29; see id. at 29 (arguing that "§ 2 protects only that opportunity, `not the right to vote for the winning candidate.'" (quoting Nevett v. Sides, 571 F.2d 209, 236 (5th Cir. 1978))). The court does not disagree with plaintiffs' position that § 2 does not require them to guarantee that an Anglo candidate of choice would prevail under their Remedial Plan. In fact, the Supreme Court has expressly stated that "the ultimate right of § 2 is equality of opportunity, not a guarantee of electoral success for minority-preferred candidates of whatever race." De Grandy, 512 U.S. at 1014 n.11, 114 S.Ct. 2647; see also League of United Latin Am. Citizens (LULAC) v. Perry, 548 U.S. 399, 428, 126 S.Ct. 2594, 165 L.Ed.2d 609 (2006) ("LULAC v. Perry") (same). But § 2 does require that plaintiffs prove that district lines can be drawn in a way that gives them an equal opportunity to elect their candidate of choice. See Gingles, 478 U.S. at 47, 106 S.Ct. 2752 ("The essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives."); see also Rodriguez v. Harris Cnty., Tex., 964 F.Supp.2d 686, 698 (S.D. Tex. 2013) ("Ultimately, the right to undiluted voting strength, provided by Section 2, is a guarantee of equal opportunity in voting, ensuring that a minority group is not denied, on account of race, color, or language minority status, the opportunity to exercise an electoral power that is commensurate with its population in the relevant jurisdiction." (citations omitted)). Plaintiffs have failed to make this showing because their candidate of choice is a Republican, and there are not a sufficient number of Anglo Republicans to elect a Republican candidate in more than one commissioner district.
Plaintiffs contend that they have demonstrated that it was possible for Dallas County to have adopted a map that would have respected plaintiffs' rights under § 2. They maintain that their expert, Dr. Hood, provided "irrefutable evidence that Anglos in Dallas County are politically cohesive at the County Commissioner Court level of government, always voting as a bloc." Ps. Post-Trial Br. 29. They criticize defendants for relying on exogenous election data (i.e., the 2016 General Election) to show that creating a second Anglo opportunity district would not give Dallas County Anglos an opportunity to elect a second Republican to the Commissioners Court if the district lines were redrawn. Plaintiffs maintain that regardless whether Secretary Clinton would have carried a redrawn district in the 2016 General Election, this "has nothing to do with the Commissioners Court level of government," and that "[i]t is possible for somebody at one level of government to win from one political party but in that same area for a person to be represented by a member of a different political party at another level of government." Closing Arguments Tr. 24.
To the extent plaintiffs criticize defendants' reliance on data from the 2016 General Election, the court agrees that endogenous election results would have been more persuasive in assessing the functionality of plaintiffs' Remedial Plan than results from the 2016 General Election. See, e.g., Rodriguez, 964 F.Supp.2d at 759 ("Endogenous elections, or contests within the jurisdiction and for the particular office that is at issue, are more probative than exogenous elections."). Exogenous election results, however, are not irrelevant. See, e.g., id. ("Nevertheless, exogenous elections — i.e. elections in a district for positions that are not exclusively representative of that district — are probative on the question of vote dilution and should be considered by the district court." (citations omitted). Regardless, plaintiffs did not offer any evidence at trial that would show how Republican candidates would fare in commissioner elections under their Remedial Plan. In fact, plaintiffs offered no evidence or analysis of any election using their proposed Remedial Plan. Dr. Morrison testified that he had no opinion as to whether Anglo voters would have the opportunity to elect their candidates of choice under the Remedial Plan, see Trial Tr. 2:116-17, and plaintiffs' political science expert, Dr. Hood, did not perform this analysis either, see Trial Tr. 3:37, 42.
It is plaintiffs' burden to prove that the 2011 Map violates § 2 of the VRA. See Benavidez, 690 F.Supp.2d at 456. Plaintiffs have not presented evidence regarding the "functionality" of their proposed Remedial Plan, and have failed to prove that it is even possible to create two commissioner districts in which Dallas County Anglos would have an opportunity to elect a Republican (which plaintiffs maintain is the Anglo candidate of choice).
In sum, to prevail on their § 2 vote dilution claim, plaintiffs must "establish
The court now turns to plaintiffs' equal protection claim, which is based on the allegation that the Commissioners Court intentionally designed the 2011 Map to reduce and lessen Dallas Anglos' electoral opportunities significantly below the level of opportunities that would have been available under a map compliant with neutral principles, and that "[t]he [2011] Map was intentionally crafted to allow Dallas's ethnic majority coalition to dominate the Commissioners Court beyond what their voting power and geographic distribution would otherwise suggest and to deny Dallas's Anglos the chance to meaningfully participate in the choice of any commissioner outside of CCD 2." 2d Am. Compl. ¶ 31.
To obtain relief on a vote dilution claim under the Fourteenth Amendment, plaintiffs must "prove that the purpose and operative effect" of the challenged election scheme "is to dilute the voting strength of [minority] citizens." Voter Info. Project, Inc. v. City of Baton Rouge, 612 F.2d 208, 212 (5th Cir. 1980) (emphasis added); see also Davis v. Bandemer, 478 U.S. 109, 127, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986) (plurality opinion) (stating that a plaintiff alleging a violation of the Equal Protection Clause of the Fourteenth Amendment must "prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group"). In other words, while § 2 requires only that the plaintiff prove that a particular voting practice resulted in a discriminatory effect, the Equal Protection Clause requires proof of "both intentional discrimination ... and an actual discriminatory effect," Davis, 478 U.S. at 127, 106 S.Ct. 2797.
To prove discriminatory effect, a plaintiff must establish that the election scheme impermissibly dilutes the voting rights of the racial minority. Rodriguez, 964 F.Supp.2d at 801. Generally, this requires proof that the racial minority's voting potential has been minimized or canceled
Although the court does not suggest that a plaintiff who is unable to prove a § 2 vote dilution claim can never prevail on a Fourteenth Amendment equal protection claim,
Accordingly, for the reasons explained, the court holds that plaintiffs have failed to prove their vote dilution claims under § 2 of the VRA and under the Equal Protection Clause of the Fourteenth Amendment, and, by separate judgment entered today, it dismisses this action with prejudice.
Ps. Trial Ex. 15 at 2.
Gill, 138 S.Ct. at 1936 (Kagan, J., concurring) (citations omitted).
Fairley v. Hattiesburg, Miss., 584 F.3d 660, 672-73 (5th Cir. 2009) (alterations in original) (quoting League of United Latin Am. Citizens (LULAC) v. Perry, 548 U.S. 399, 426, 126 S.Ct. 2594, 165 L.Ed.2d 609 (2006) ("LULAC v. Perry")).