James RODRIGUEZ, et al., Plaintiffs, v. HARRIS COUNTY, TEXAS, et al., Defendants, 964 F. Supp. 2d 686

ORDER VANESSA D. GILMORE, District Judge. In this case, Plaintiffs Edward Gonzalez, Orlando Ybarra, Patricia Gonzales, Reynaldo Guerra, Sandra Puente, Thomas Berg, and James Rodriguez (collectively, “Plaintiffs”) challenge the legality of the redistricting plan adopted by the Harris County Commissioner’s Court on August 9, 2011, known as Revised Plan A-l, which reapportions voters among Harris County’s four commissioner precincts (the “County’s Plan”).

Plaintiffs claim that the County’s Plan dilutes the voting strength of politically cohesive Latinos in Harris County Commissioner’s Precinct 2 (“Precinct 2”), such that this population has less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice, resulting in a violation of

Section 2 of the Voting Rights Act, as amended, 42 U.S.C. § 1973 et seq. Plaintiffs further contend that the County’s Plan violates the Equal Protection Clause of the Fourteenth Amendment of ■ the United States Constitution, because it allegedly was drawn (

i) with the motive of intentional discrimination against Hispanics and (ii) with excessive and unjustified use of race and racial data. Defendants Harris County, Texas, and Ed Emmett, in his capacity as Harris County Judge (collectively, “Defendants”), contend that the County’s Plan neither violates the Voting Rights Act nor does it offend the Constitution. This matter was tried without a jury beginning on November 13, 2012. The Court, having heard the arguments, read the submissions of counsel, reviewed the governing legal principles, and considered the testimonial evidence and exhibits, submits the following findings of fact and conclusions of law. I. LEGAL FRAMEWORK:

SECTION 2 OF THE VOTING RIGHTS ACT

Section 2 of the Voting Rights Act of 1965 (the ‘Voting Rights Act”), as amended in 1982, provides that: (

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 .... (

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. 42 U.S.C. § 1973. The Voting Rights Act was enacted to “give those who had been disenfranchised on account of their race the opportunity to participate in the political process.” White v. Alabama, 74 F.3d 1058, 1069 (11th Cir.1996).

Section 2 proscribes practices that, while permitting a mechanical exercise of the right to vote, “operate[] to cancel out or minimize [i.e. dilute] the voting strength of racial groups,” such that members of the racial minority have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. See Thornburg v. Gingles, 478 U.S. 30, 87, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986) (O’Connor, J., concurring); Rodriguez v. Bexar Cnty., 385 F.3d 853, 859 (5th Cir.2004); see also White v. Regester, 412 U.S. 755, 765-66, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). 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. Johnson v. De Grandy, 512 U.S. 997, 1014 n. 11, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994) (“the ultimate right of

Section 2 is equality of opportunity”); Hall v. Virginia, 385 F.3d 421, 429 (4th Cir. 2004); see also Campos v. City of Houston, 113 F.3d 544, 546 (5th Cir.1997). That said, the goal of

Section 2 is not to guarantee success at the polls for minority-preferred candidates but to provide assurances of fairness in the electoral process. De Grandy, 512 U.S. at 1014, 114 S.Ct. 2647. The promise of

Section 2 is the removal of all barriers to truly equal participation, but a necessary part of equal participation is the possibility of a loss. United States v. Euclid City Sch. Board, 632 F.Supp.2d 740, 752 (N.D.Ohio 2009). After all,

Section 2 protects the right to meaningful participation, “not the right to vote for the winning candidate.” Nevett v. Sides, 571 F.2d 209, 236 (5th Cir.1978). A state or political subdivision thereof violates

Section 2 whenever it adopts a practice that dilutes the voting strength of a minority group, such that members of the minority group have less opportunity for meaningful participation and franchise. Voinovich v. Quitter, 507 U.S. 146, 157, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993); Gingles, 478 U.S. at 44, 106 S.Ct. 2752. Proof of vote dilution is assembled using the two-part framework set forth in the seminal case of Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). Growe v.

Emison, 507 U.S. 25, 40-41, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993) (vote dilution challenge to a single-member districting scheme is analyzed using the framework set forth in Gingles); Fairley v. Hattiesburg, 584 F.3d 660, 667 (5th Cir.2009).

Under Gingles, a plaintiff must first demonstrate that: (1) the affected minority group is sufficiently large and geographically compact to constitute a majority in an additional single-member district; (2) the affected minority group is politically cohesive; and (3) the white majority votes sufficiently as a bloc to enable it — in the absence of special circumstances — usually to defeat the minority group’s preferred candidates. League of United Latin Am. Citizens v.

Perry, 548 U.S. 399, 425, 126 S.Ct. 2594, 165 L.Ed.2d 609 (2006); Gingles, 478 U.S. at 50-51, 106 S.Ct. 2752; Fairley, 584 F.3d at 667. “[The Fifth Circuit] has interpreted the Gingles factors as a bright line test.” Valdespino v. Alamo Heights Indep. Sch. Dist., 168 F.3d 848, 852 (5th Cir.1999). Each factor must be proved. Growe, 507 U.S. at 40-41, 113 S.Ct. 1075; Fairley, 584 F.3d at 667 (quoting Sensley v. Albritton, 385 F.3d 591, 595 (5th Cir.2004)).

Failure to establish any one of the three Gingles factors precludes a finding of vote dilution, because if these three preconditions are not present then the plaintiffs cannot show that the challenged electoral practice or device impairs minority voters’ ability to elect representatives of their choice. League of United Latin Am. Citizens No. U552 v. Roscoe Indep. Sch. Dist., 123 F.3d 843, 847 (5th Cir.1997); League of United Latin Am. Citizens No. v. Clements, 986 F.2d 728, 743 (5th Cir.1993) (“LULAC III”); Benavidez v. Irving Indep. Sch. Dist., 690 F.Supp.2d 451, 455 (ND.Tex. 2010).

The satisfaction of these three preconditions is necessary but not sufficient to establish a

Section 2 claim. De Grandy, 512 U.S. at 1012-13, 114 S.Ct. 2647; see also Perry, 548 U.S. at 425-26, 126 S.Ct. 2594. If these three preconditions are met, the district court must then examine a variety of other factors to determine whether, under the totality of the circumstances, the challenged practice impairs the ability of the minority voters to participate equally in the political process and to elect a representative of their choice. De Grandy, 512 U.S. at 1011, 114 S.Ct. 2647; Fairley, 584 F.3d at 667 (citing Sensley, 385 F.3d at 595); see also Bartlett v.

Strickland, 556 U.S. 1, 11-12, 129 S.Ct. 1231, 173 L.Ed.2d 173 (2009). This requires a “searching practical evaluation of the past and present reality.” Gingles, 478 U.S. at 45, 106 S.Ct. 2752 (quoting S.Rep. No. 417, 97th Cong., 2d. Sess., (1982) (“Senate Report”) at 30, reprinted in' 1982 U.S.Code Cong. & Admin. News (“U.S.C.C.A.N.”) 177 at 208).

In conducting this broader inquiry, the court should consider the objective factors set forth in the Senate Report accompanying the 1982 amendments to the Voting Rights Act, including: (1) the history of voting-related discrimination in the State or political subdivision; (2) the extent to which voting in the elections of the State or political subdivision is racially polarized; (3) the extent to which the State or political subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group; (4) the degree to which members of the minority group have been denied access to the candidate slating process; (5) the extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process; (6) the use of overt or subtle racial appeals in political campaigns; (7) the extent to which members of the minority group have been elected to public office in the jurisdiction; (8) whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group; and (9) whether the policy underlying the state or political subdivision’s use of such voting qualification, prerequisite to voting, or standard, practice, or procedure is tenuous.

Senate Report at 28-29, 1982 U.S.C.C.A.N. at 206-07; Perry, 548 U.S. at 426, 126 S.Ct. 2594 (citing Gingles, 478 U.S. at 44-45,106 S.Ct. 2752). Although the totality of the circumstance analysis is guided by the Senate factors, these factors are neither “comprehensive nor exclusive.” Gingles, 478 U.S. at 45, 106 S.Ct. 2752; Teague v. Attala Cnty., Miss., 92 F.3d 283, 292 (5th Cir.1996) (noting that the district 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.”).

The Court must also consider “whether the number of districts in which the minority group forms an effective majority is roughly proportional to its share of the population in the relevant area,” Perry, 548 U.S. at 426, 436, 126 S.Ct. 2594; De Grandy, 512 U.S. at 1000, 114 S.Ct. 2647, as well as any other fact which may bear on the question of dilution. See Gingles, 478 U.S. at 45,106 S.Ct. 2752.

Ultimately, the totality of the circumstances inquiry presents very complex political and legal issues whose resolution requires a comprehensive canvassing of the relevant facts, De Grandy, 512 U.S. at 1011, 114 S.Ct. 2647, and “an intensely local appraisal of the design and- impact of the contested electoral mechanisms.” Gingles, 478 U.S. at 79,106 S.Ct. 2752. Given that the plaintiffs ability to establish the three Gingles factors does not end the court’s inquiry, proof of the Gingles factors does-not always portend liability. De Grandy, 512 U.S. at 1012-13, 114 S.Ct. 2647.

That said, “it will only be the very unusual case in which the plaintiffs can establish the existence of the three Gingles factors but still have failed to establish a violation of § 2 under the totality of circumstances.” Teague, 92 F.3d at 292; Clark v. Calhoun Cnty., Miss., 88 F.3d 1393, 1396 (5th Cir.1996) {“Clark IP’); Benavidez v.

City of Irving, Tex., 638 F.Supp.2d 709, 712-13 (ND.Tex. 2009). “Because the resolution of a voting dilution claim requires close analysis of unusually complex factual patterns, and because the decision of such a case has the potential for serious interference with state functions, ... district courts [must] explain with particularity their reasoning and the subsidiary factual conclusions underlying their reasoning.” Westwego Citizens for Better Gov’t v. City of Westwego, 872 F.2d 1201, 1203 (5th Cir.1989) (“Westwego I”); Roscoe, 123 F.3d at 846; see also Fairley v.

Hattiesburg, 584 F.3d 660, 668, 668 n. 5 (5th Cir.2009). Although the Court is expected to consider all substantial evidence, Plaintiffs, at all times, bear the burden of proving, by a preponderance of the evidence, that all of the Gingles preconditions have been met and that based on the totality of the circumstances, the challenged election device dilutes the voting strength of the minority group. Roscoe, 123 F.3d at 846. II. BACKGROUND A.

THE PARTIES & THEIR CONTENTIONS Plaintiffs Edward Gonzalez, Orlando Ybarra, Patricia Gonzales, Reynaldo Guerra, and Sandra Puente all are Hispanic registered voters residing in Commissioners Court Precinct 2 in Harris County, Texas. (Instrument No. 91, at 14 ¶ 1). Plaintiffs Thomas Berg and James Rodriguez are not residents of Precinct 2. (Instrument No. 91, at 14 ¶ 2). Plaintiffs allege that the County’s Plan violates

Section 2 of the Voting Rights Act and the Fourteenth Amendment. As for the

Section 2 claims, Plaintiffs contend that: (

i) they can draw a precinct in which Latinos constitute a majority of the citizen voting age population; (ii) Latinos are politically cohesive; (iii) Anglos vote, as a bloc, to defeat the Latino-preferred candidate; and (iv) under the totality of the circumstances, the County’s plan dilutes the voting strength of the Latino residents of Precinct 2. As for the constitutional claims, Plaintiffs contend that the County’s Plan was drawn with an excessive and unjustified use of racial data and was drawn with the intent to discriminate against Latinos.

Intervenor the League of United Latiii American Citizens (“LULAC”) agrees with Plaintiffs’ contentions. Defendants Harris County, Texas, and Ed Emmett, in his capacity as Harris County Judge, have appeared and answered herein. (Instrument No. 91, at 14 ¶4). Defendants claim that the County Plan does not violate either

Section 2 or the Fourteenth Amendment. Specifically, Defendants .contend that their Plan does not violate

Section 2 because: (

i) Plaintiffs cannot show that Latinos constitute a majority of the citizen voting age population in a geographically compact district drawn in accordance with traditional redistricting principles; (ii) Plaintiffs cannot establish the existence of racial bloc voting because Plaintiffs cannot show that race, rather than some non-racial factor, such as partisanship, accounts for the differences in the voting patterns of Anglos and Latinos; and (iii) under the totality of the circumstances, Plaintiffs cannot show that the County’s Plan diminishes their opportunity to participate in the political process and elect representatives of their choice.

Defendants further contend that the County’s Plan does not violate the Fourteenth Amendment because the Plan was not drawn with the intention to discriminate nor was it drawn with undue attention to race or racial considerations. The Precinct 1 Intervenors, Senfronia Thompson, Harold Dutton, Bruce Austin, Willie Bell Boone, and Howard Middleton, are all African-American registered voters residing in Harris County Commissioners Precinct 1. (Instrument No. 91, at 14, 15 ¶ 3, 7).

Harris County’s Commissioner Precinct 1 is an effective African-American opportunity precinct created in 1980 and is protected by the Voting Rights Act. (Instrument No. 91, at 14, 15 ¶ 3, 7). The Precinct 1 Intervenors also argue that the County’s Plan violates neither

Section 2 of the Voting Rights Act nor the Fourteenth Amendment. B. CURRENT METHOD OF ELECTING COUNTY COMMISSIONERS & THE NEED FOR REDISTRICTING

Section 18 of

Article V of the Texas Constitution provides, in relevant part, that: Each county shall, in the manner provided for justice of the peace and constable precincts, be divided into four commissioners precincts in each of which there shall be elected by the qualified voters thereof one County Commissioner, who shall hold his office for four years and until his successor shall be elected and qualified.

The County Commissioners so chosen, with the County Judge as presiding officer, shall compose the County Commissioners Court, which shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed. Tex. Const, art. V, § 18.

In keeping with this constitutional dictate, Harris County government is organized into a commissioners court; the Harris County Commissioners Court, comprised of the county judge and four county commissioners, is tasked with the administration of the county’s business and legislative affairs. (Instrument No. 91, at 14 ¶ 5); see also City of San Antonio v. City ofBoeme, 111 S.W.3d 22, 27-28 (2003) (quoting Avery v. Midland Cnty., 406 S.W.2d 422, 426 (1966)); Louisianar-Pacific Corp. v. Newton Cnty., 149 S.W.3d 262, 263 (TexApp.-Eastland 2004, no pet.); Concerned Citizens for Equality v.

McDonald, 863 F.Supp. 393, 395 (E.D.Tex.1994). The services provided by Harris County Commissioners to their constituents include drainage services, unincorporated road maintenance, emergency services, medical clinics, parks and recreational facilities, community centers, education centers, libraries, and precinct-wide community programs. (Instrument No. 91, at 14 ¶ 6). Harris County has a competitive multiparty political system dominated by the two major political parties, the Democratic Party and the Republican Party. (Instrument No. 91, at 19 ¶ 35). Candidates for County Commissioner run partisan campaigns.

Democrat Sylvia Garcia, a Latina candidate, was first elected as Precinct 2 County Commissioner in 2002. She was re-elected in 2006, but was narrowly defeated in 2010 by Republican Jack Morman, an Anglo candidate. (Instrument No. 91, at 19 ¶36). Mr. Morman is the current commissioner for Precinct 2. (Instrument No. 91, at 19 ¶ 38). Prior to 2011, Harris County commissioner precincts were last reapportioned in 2001, resulting in the 2001 map, depicted in the next diagram. (Instrument No. 91, at 15 ¶ 8).

Between 2001 and 2010, population changes and shifts occurred in Harris County that resulted in substantial numerical variation in the population of the four commissioner precincts, as reflected by 2010 Census data. (Instrument No. 91, at 15 ¶ 9). Based on data from the 2010 Census, the populations among the Commissioner Precincts, as drawn under the 2001 Map, ranged from a high in Precinct 3 of 1,148,890 to a low in Precinct 2 of 888,572, for a total top-to-bottom deviation of 25.44%. (Instrument No. 91, at 15 ¶ 10).

Following the publication of the 2010 Census data, the Harris County Commissioners Court announced its intent to redistrict the boundaries of its commissioner precincts. (Instrument-No. 91, at 15 ¶ 11). To assist the Commissioners Court in the evaluation of the new population statistics resulting from the 2010 Census and in drafting the proposed plan, the County retained the services of Drs. Richard Murray and David Branham and hired Andrews Kurth LLP as special counsel for the County on redistricting (collectively, the “Consultants”). (Instrument No. 91, at 15 ¶ 12).

On June 21, 2011, the Consultants made a presentation at a public meeting of the Commissioners Court concerning legal requirements for redistricting, the 2010 census data, and the need for adoption of principles to guide the redistricting. An opportunity was provided for public comment at this meeting. (Instrument No. 91, at 15 ¶ 13). On June 21, 2011, the Commissioners Court adopted an Order Adopting Priorities and Principles for Redistricting of Harris County Commissioner Precincts (the “Priorities and Principles”) to guide the formulation of the 'redistricting plan. (Instrument No. 91, at 15 ¶ 14).

The Commissioners Court adopted the following Priorities and Principles: (

a) the four commissioner precincts should be of substantially equal population and, in no event, exceed a 10% top-to-bottom deviation; (

b) the four commissioner precincts should be contiguous and reasonably geographically compact; (

c) to the extent possible, the redistricting plan should use identifiable geographic boundaries as precinct boundaries, preserve natural historical boundaries, recognize identifiable communities of interest in a single precinct and avoid splitting neighborhoods when drawing precinct lines; (

d) to the extent possible, the four commissioner precincts should be based on existing composition of the precincts; (

e) the redistricting plan should use whole county voting precincts to draw commissioner precincts; (

f) the redistricting plan will adhere to (

i) the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and not use race as the predominate factor in establishing commissioner precincts and (ii) the Voting Rights Act and avoid retrogression in the position of racial, ethnic and language minorities with respect to the effective exercise of their right to vote or electoral franchise. The redistricting plan should not dilute voting strength of racial or language minority citizens and should not either fragment minority communities or pack them into precincts in concentrations greater than necessary to help them elect minority representation; (

g) recognizing the value of incumbent-constituency relations, the redistricting plan should seek to keep (

i) existing commissioners in their existing precincts and (ii) facilities and service locations established by incumbent commissioners in the precincts of those commissioners; (

h) the redistricting plan should recognize the duties and obligations imposed by law on commissioners to provide services to the residents of precincts and the public investment in facilities, service locations and personnel that has been made to provide such services. (Defendants’ Ex. 3, at 4); (Instrument No. 91, at 15-17 ¶ 15). On July 12, 2011, in a public meeting, the Commissioners Court adopted Plan A-1 for formal consideration and for presentation to the public. An opportunity was provided for public comment at the meeting. (Instrument No. 91, at 17 ¶ 16).

In mid-July 2011, notice of the dates, times and locations for public hearings was published in English, Spanish and Vietnamese in newspapers of general circulation and in community newspapers. Notice was also provided in two separate locations on Harris County’s website with Plan A-l attached, along with the “Priorities and Principles of Redistricting” and census information. (Instrument No. 91, at 17 ¶ 17). From July 25 to August 1, 2011, Plan A-1 was presented and public comment was received at four separate public hearings, one in each commissioner precinct. (Instrument No. 91, at 17 ¶ 18).

At each public hearing, Douglas Ray, Assistant County Attorney, presided and a PowerPoint presentation was made that summarized the redistricting process, the legal considerations for redistricting, and the Principles and Priorities. Defendants’ expert Dr. Richard Murray presented a

summary of the demographic considerations that went into the development of Plan A-1. (Instrument No. 91, at 17 ¶ 19). Additionally, at each public hearing, 36-inch-by-48-inch mounted copies of maps of the existing districts and Plan A-l were displayed and printouts of the PowerPoint presentation as well as a chart depicting the voting precinct changes were available in English, Spanish, and Vietnamese. The County also engaged Spanish and Vietnamese interpreters for each public hearing. (Instrument No. 91, at 17 ¶ 20).

Members of the public were given an opportunity to make comments at the public hearings, and many did, including elected officials and members of the African-American community in Precinct 1 and the Hispanic community in Precinct 2. (Instrument No. 91, at 17 ¶ 21). At each of the public hearings, certain members of the public expressed opposition to the proposed plan in light of the impact the plan would have on the Hispanic community in Precinct 2. Other members of the public, including certain residents of Precinct 1, expressed support for the County’s Plan. (Instrument No. 91, at 17-18 ¶ 22).

Latino citizens, Dr. Reynaldo Guerra and Robert Jara, however, presented a proposed alternative map (the “Guerra-Jara plan”) at the Precinct 3 public hearing. (Instrument No. 91, at 18 ¶ 23). Following the first four public hearings, the Consultants revised draft Plan A-l in response to some of the concerns raised by members of the Hispanic Community, re-suiting in Revised Plan A-l (the “Revised Plan A-l”), depicted in the next diagram. Specifically, Revised Plan A-l removed from Precinct 2 and placed back into Precinct 4 two majority-Anglo voting precincts (758 and 760) located in the Kingwood, Texas area.

Revised Plan A-l also moved to Precinct 2 from Precinct 1 five heavily Hispanic whole voting precincts (737, 397, 792, 106, and 817) and five heavily Hispanic partial voting precincts (423B, 061B, 409B, 408B, 608B) in the Aldine area. (Instrument No. 91, at 18 ¶ 24). The changes made by the Consultants resulted in an increase in the Hispanic voting age population in Precinct 2 under Revised Plan A-l, as compared to Plan A-l. (Instrument No. 91, at 18 ¶ 25).

On August 5, 2011, notice of an additional public hearing and a copy of Revised Plan A-l were posted on the County’s website and the notice of public hearing was published in a newspaper of general circulation. (Instrument No. 91, at 18 ¶ 27). On August 9, 2011, a final public hearing was held during which the public was invited to comment on redistricting generally and the proposed changes incorporated in Revised Plan A-l. (Instrument No. 91, at 18 ¶28).

Following the final public hearing, on August 9, 2011, the Commissioners Court adopted Revised Plan A-l and authorized its submission to the United States Department of Justice (the “Justice Department”) for preclearance through an Order Establishing New Boundaries for Commissioner Precincts for Harris County, Texas. (Instrument No. 91, at 18 ¶ 29). On August 5, 2011, Plaintiffs filed the instant suit in the United States District Court in and for the Southern District of Texas. See (Instrument No. 1). In the suit, Plaintiffs claim that the County’s Plan violated

Section 5 of the Voting Rights Act because the County was attempting to employ a new map without first obtaining pre-clearance from the Justice Department. (Instrument No. 19). Plaintiffs further claim that the County’s Plan dilutes the voting- strength of politically cohesive Latinos in Precinct 2, in violation of

Section 2 of the Voting Rights Act. Finally, Plaintiffs contend that the County’s Plan violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, because it allegedly was drawn (

i) with the motive of intentional discrimination against Hispanics and (ii) with excessive and unjustified use of race and racial data. See (Instrument No. 19). On October 19, 2011, a three-judge panel, composed of Judge Jennifer Elrod of the United States Court of Appeals for the Fifth Circuit, United States District Judge Sim Lake of the Southern District of Tex-as, and United States District Judge Vanessa Gilmore of the Southern District of Texas, was convened to consider Plaintiffs’

Section 5 claims. On November 7, 2011, the three-judge panel determined the County was seeking preclearance of the Revised Plan A-l and did not intend to implement the Revised Plan A-l unless it obtained preclearance from the Justice Department. Accordingly, the three-judge panel concluded that the

Section 5 claims should be held in abeyance unless the County attempted to implement a nonprecleared plan. On November 14, 2011, this Court, acting of its own accord without the three-judge panel, held trial on the constitutionality of conducting the 2012 elections using the 2001 map, which was, at the time, the last precleared plan. At the end of trial, the Court found that the use of the existing plan would violate the constitution’s guarantee of one man, one vote and therefore concluded that the continued use of the existing plan was unconstitutional.

Because the Revised Plan A-l had not at that time obtained preclearance from the Department of Justice, the County could not use that plan to conduct the 2012 election. Accordingly, the Court fashioned an interim map that was used to conduct the 2012 election (the “Interim Map”). See (Instrument No. 66). After slight modifications, neither party objected to the Court’s interim map. The interim map is depicted in the next diagram. On December 30, 2011, the Justice Department issued a letter stating that it would not interpose any objection to Revised Plan A-l under its authority granted under

Section 5 of the Voting Rights Act. The Justice Department stated no opinions under

Section 2 of the Voting Rights Act. (Instrument No. 91, at 19 ¶ 31). In the correspondence exchanged between Harris County and the Justice Department, the County took the position that Precinct 2 was not an effective opportunity district but was instead a Hispanic influence district. An opportunity district is a district in which members of a minority group (i.e. Latinos), alone, are able to elect candidates of their choice, whereas an influence district is a district in which members of a minority group (i.e.

Latinos) are a minority of the voters, but “the minority population, at least potentially, is large enough to elect the candidate of its choice with help from voters who are members of the majority and who cross over to support the minority’s preferred candidate.” Bartlett v. Strickland, 556 U.S. 1, 13, 129 S.Ct. 1231, 173 L.Ed.2d 173 (2009). The County further argued that the Revised Plan A-l preserved Precinct 2’s status as an influence district. (Instrument No. 91, at 19 ¶ 32).

The Justice Department preclearance letter stated in part, “the failure of the Attorney General to object does not bar subsequent litigation to enjoin enforcement of the change.” (Instrument No. 91, at 19 ¶ 33). After the Justice Department precleared the map, the three-judge panel dismissed Plaintiffs’

Section 5 claims, leaving only the aforementioned

Section 2 claims and the constitutional claims at issue in this lawsuit. Moreover, given that the County had obtained preclearance, it was free to implement the Revised Plan A-l. Nevertheless, because the County obtained preclearance so late in the electoral calendar, the County conducted the 2012 elections using the Court’s interim map, with the intention of conducting all future elections under the Revised Plan A-l. In the instant case, Plaintiffs challenge the Revised Plan A-l on the basis that the Plan dilutes the Latino vote in Precinct 2, in violation of

Section 2 of the Voting Rights Act, and the Plan was drawn with discriminatory intent, in violation of the Fourteenth Amendment to the United States Constitution. Ultimately, Plaintiffs seek to establish Precinct 2 as a Latino opportunity district under the Voting Rights Act. (Instrument No. 91, at 19 ¶ 34). C. POPULATION CHANGES AND DEMOGRAPHIC INFORMATION In 2000, there were 3,400,578 people living in Harris County. (Plaintiffs’ Ex. 49, at 1, 2).

Of that number, 1,432,264 (42.1%) were Anglo, 1,119,791 (32.9%) were Latino, 619,694 (18.2%) were African-American, and 228,869 (6.8%) were Asian and/or other racial background. Over the course of the decade, the total population of Harris County increased by 691,881 individuals. See (Plaintiffs’ Ex. 49, at 2); (Tr. 2:7). During that time, the county-wide Anglo population shrunk by some 82,618 persons; the Latino population grew by 551,789 individuals; the African-American population grew by 134,564 persons; and the Asian and other population grew by 88,146 persons. (Plaintiffs’ Ex. 49, at 2); (Tr. 2:7).

At the end of the decade, Anglos accounted for 1,349,646 (33.0%) of the total population of Harris County; there were 1,671,540 (40.8%) Latinos; 754,258 were (18.4%) African American; and 317,015 (7.7%) were people of Asian or other descent.

TOTAL POPULATION AND VOTING AGE POPULATION (VAP) CHANGE WITHIN HARRIS COUNTY COMMISSIONER PRECINCTS BETWEEN 2000-2010 _BYRACIAL/ETHNIC GROUP_ _Precinct 1_ _2000_2010_Change_ Total Pop._827,341 100% 930,613 100% 103,272 +12.48% Anglos_188,270 22.76% 175,127 18.8% -13,143 -6.98% Blacks_363,515 43.94% 346,810 37.3% -16,705 -4.6% Latinos_263,792 28.62% 357,504 38.4% +93,712 +35.52% Asians/Others_38,764 4.68% 51,172 5.5% +12,408 +32.01% Voting Age Pop. 592,896 100% 680,238 100% +87,342 +14.73% Anglos_158,278 26.70% 151,788 22.3% -6,490 -4.1% Blacks_253,932 42.83% 256,488 37.7% +2,556 +1.01% Latinos_150,706 25.42% 230,504 33.9% +79,798 +52.95% Asians/Others_29,980 5.06% 41,458 6.1% +11,478 + 32.89% _Precinct 2_ _2000_2010_Change Total Pop._847,078 100% 888,572 100% +41,494 +4.90% Anglos_312,717 36.92% 248,481 28.0% -64,236 -20.54% Blacks_66,237 7.82% 77,933 8.8% +11,696 +17.66% Latinos_441,508 52.12% 533,812 60.1% +92,304 + 20.91% Asians/Others_26,616 3.14% 28,346 3.2% +1,730 + 6.5% Over the course of the decade, the racial composition of the four commissioner’s precincts, individually, as well as the racial composition of the County, as a whole, changed dramatically.

See (Tr. 3: 185-87). Between 2000 and 2010, approximately 13,143 Anglo residents moved out of Precinct 1, reducing the Anglo population from 188,270 in 2000 to 175,127 in 2010. (Plaintiffs’ Ex. 24, at 1). The 175,127 Anglo residents who remained comprised 18.8% of the total population of Precinct 1 in 2010. (Plaintiffs’ Ex. 24, at 1); (Tr. 3:185). During that same period, the African-American population of Precinct 1 contracted by 16,705 residents (or 6.98%), decreasing the African-American population from 363,515 in 2000 to 346,810 in 2010.

In 2010, the 346,810 African-American residents who remained accounted for 37.3% of the total population of Precinct 1. (Plaintiffs’ Ex. 24, at 1); (Tr. 3:185). Over the course of the same period, the Latino population of Precinct 1 grew considerably. Between 2000 and 2010, an additional 93,-712 Latinos took residence in Precinct 1, increasing Precinct l’s Latino population from 263,792, in 2000 to 357,504 in 2010. By 2010, the 357,504 Latinos taking residence in Precinct 1 accounted for 38.4% of the entire population of Precinct 1. (Plaintiffs’ Ex. 24, at 1); (Tr. 3:185).

Over the same period, Precinct 2’s Anglo population declined precipitously; some 63,236 Anglo residents left Precinct 2, reducing the Anglo population from 312,717 in 2000 to 248,481 in 2010. (Plaintiffs’ Ex. 24, at 2); see also (Tr. 3:187). As of 2010, the 248,481 Anglo residents who remained comprised 28.0% of the total population of Precinct 2. (Plaintiffs’ Ex. 24, at 2). From 2000 to 2010, the African-American population of Precinct 2 grew by 11,696 residents, increasing the African-American population from 66,237 in 2000 to 77,933, in 2010. (Plaintiffs’ Ex. 24, at 2).

In 2010, the 77,933 African-American residents of Precinct 2 accounted for 8.8% of the total population of Precinct 2. (Plaintiffs’ Ex. 24, at 2). The Latino population of Precinct 2 blossomed as the decade unfolded. Between 2000 and 2010, an additional 92,304 Latinos took residence in Precinct 2, increasing Precinct 2’s Latino population from 441,508 in 2000 to 533,812 in 2010. (Plaintiffs’ Ex. 24, at 2); see also (Tr. 3:186). By 2010, the 553,812 Latinos residing in Precinct 2 accounted for 60.1% of the entire population of Precinct 2. (Plaintiffs’ Ex. 24, at 2).

In Precinct 3, approximately 8,695 Anglo residents moved out of Precinct 3 over the course of the decade, reducing the Anglo population from 446,368 in 2000 to 437,673 in 2010. (Plaintiffs’ Ex. 24, at 3). In 2010, the 437,673 Anglo residents who remained comprised 38.1% of the total population of Precinct 3. (Plaintiffs’ Ex. 24, at 3). During that same period, the African-American population of Precinct 3 grew by 62,-610 residents, increasing the African-American population from 108,465 in 2000 to 171,075 in 2010. (Plaintiffs’ Ex. 24, at 3).

In 2010, the 171,075 African-American residents of Precinct 3 accounted for 14.9% of the total population of Precinct 3. (Plaintiffs’ Ex. 24, at 3). Over the course of the same period, the Latino population of Precinct 3 swelled. Between 2000 and 2010, an additional 168,687 Latinos took residence in Precinct 3, increasing Precinct 3’s Latino population from 237,189 in 2000 to 405,876 in 2010. (Plaintiffs’ Ex. 24, at 3); see also (Tr. 3:187). By 2010, the 405,876 Latinos residing in Precinct 3 accounted for 35.3% of the entire population of Precinct 3. (Plaintiffs’ Ex. 24, at 3).

Between 2000 and 2010, 3,456 Anglo residents moved to Precinct 4, increasing the Anglo population of Precinct 4 from 484,-909 in 2000 to 488,365 in 2010. (Plaintiffs’ Ex. 24, at 4). By 2010, Anglo residents comprised 43.4% of the total population of Precinct 4. (Plaintiffs’ Ex. 24, at 4). During that same decade, the African-American population of Precinct 4 grew by 85,-964 residents, increasing the African-American population from 93,563 in 2000 to 179,527 in 2010. (Plaintiffs’ Ex. 24, at 4).

In 2010, the 179,527 African-American residents of Precinct 4 accounted for 16.0% of the total population of Precinct 4. (Plaintiffs’ Ex. 24, at 4). Over the course of the same period, an additional 168,687 Latinos took residence in Precinct 4, increasing Precinct 4’s Latino population from 204,-262 in 2000 to 374,348 in 2010. (Plaintiffs’ Ex. 24, at 4); see also (Tr. 3:188). By 2010, the 374,348 Latinos residing in Precinct 4 accounted for 35.3% of the entire population of Precinct 4. (Plaintiffs’ Ex. 24, at 4). As Dr.

Murray explained, over the course of the ten-year period beginning in 2000 and ending in 2010, Harris County experienced exponential growth. See (Tr. 3:188). That growth was fueled, in part, by robust growth in the Latino population. Although each of the four precincts experienced strong Latino growth, the most significant growth among the Latino population occurred in the western and northern portions of the County, in Precincts 3 and 4, respectively. (Tr. 3:188); see also (Plaintiffs’ Ex. 24). Although Precinct 2 had the largest total Latino population, it had the smallest growth among Latinos. (Tr. 3:187-88).

In fact, Precinct 2’s Latino growth rate of 20.91%, which resulted in an additional 92,304 Latino residents in Precinct 2 by 2010, paled in comparison to the Latino growth rate in: (

i) Precinct 1, which experienced a 35.52% increase in Latino population over the decade, resulting in an additional 93,712 Latino residents in Precinct 1, (ii) Precinct 3, which experienced a 71.12% increase in Latino population over the course of the decade, resulting in an additional 168,687 Latino residents in Precinct 3, and (iii) Precinct 4, which experienced an 83.27% increase in Latino population, resulting in an additional 170,086 Latino residents in Precinct 4. See (Plaintiffs’ Ex. 24, at 1-4).

The graphs that follow depict the changes in the Latino distribution: LATINO POPULATION GROWTH PER SQUARE MILE IN HARRIS COUNTY FROM 2000-2010 The western and central-western portions of the County experienced major growth in their Latino population, such that by the end of the decade all four precincts boasted sizable Latino populations. LATINO DISTRIBUTION IN HARRIS COUNTY Of course, this surge in Latino population in the northern and western portions of the County did not merely affect the distribution of the County’s Latino residents, but it also impacted the county-wide population trends.

The county-wide population trends tracked the Latino population trends, such that the county-wide population, just like the Latino population, experienced its most robust growth in the western and northern portions of the County, in what was then commissioner’s Precincts 3 and 4, respectively. (Tr. 3:230). This boom in population left Precincts 3 and 4 considerably over-populated while leaving Precincts 1 and 2 significantly under-populated by the end of the decade. (Tr. 3:181-82).

POPULATION CHANGE IN HARRIS COUNTY COMMISSIONER PRECINCTS: 2000-_2010_ Precinct Population in Population in Change in Deviation from _2000_2010_Population_2010 Mean 1_827,341_930,613 + 103,272 ( +12.48%) 92,502 (9.04%) 2_847,078_888,572 + 41,494 (+ 4.90%) -134,543 (13.15%) 3 889,646_1,148,890 + 259,244 (+ 29.14%) +125,775 ( +12.29%) 4_836,513_1,124,384 + 287,871 (+ 34.41%) +101,269 ( + 9.9%) Between 2000 and 2010, Precinct 4 experienced a population increase of almost 288,000 people resulting in a 34% increase from the 2000 population. (Tr. 3:184); (Plaintiffs’ Ex. 23).

Over the same period, Precinct 3, like Precinct 4, also experienced a dramatic population increase of almost 259,000 people, resulting in a 29% population increase between 2000 and 2010. (Tr. 3:184); (Plaintiffs’ Ex. 23). Precincts 1 and 2 grew, but their growth did not rival the robust growth of Precincts 3 and 4. In Precinct 1, for instance, the population grew by 12.8% between 2000 and 2010, resulting in a population increase of 103,000 persons over the course of the decade. (Tr. 3:184). Although Precinct 2 grew, its population grew at a much slower rate than the populations of either Precincts 1, 3, or 4.

Over the course of the decade, Precinct 2 only experienced a 4.9% growth in population, which resulted in an additional 41,000 persons living in Precinct 2 at the end of the decade. (Tr. 3:184); (Plaintiffs’ Ex. 23). Under the one-man, one-vote principle, the County’s population should be equally divided amongst the four commissioner precincts. See (Tr. 3:183). According to the 2010 census, there were 4,092,000 people living in the County. (Tr. 3:184). In light of these population equality principles, each precinct should have a population mean of 1,023,000 people.

As the chart above indicates, Precincts 1 and 2 were well below the ideal population mean. In Precinct 1, the County would have to increase the population of the precinct by approximately 92,500 people in order attain the population mean. (Tr. 3:184); see also (Plaintiffs’ Ex. 23). In order for Precinct 2 to attain the population mean, the County would have to increase the population by more than 134,000 people. (Plaintiffs’ Ex. 23); (Tr. 3:184). Conversely, Precincts 3 and 4 were over-populated.

In order for the County to attain the population mean in Precinct 4, the County would have to remove more than 125,000 people from the precinct and relocate them to another precinct. In order for Precinct 4 to attain the population mean, the County would have to remove 101,000 people from the precinct and relocate them to another precinct. See (Plaintiffs’ Ex. 23). In addition to this surge in the overall population, the Latino citizen-voting age population also grew dramatically. See (Plaintiffs’ Ex. 39, at 2).

From 2000 to 2009, the Latino citizen voting age population grew by 167,184 additional Latino adult citizens, growing from 374,227 persons in 2000 to 541,411 persons in 2009, resulting in a 44% increase in the Latino citizen voting age population over the course of the decade. During that same time the total citizen voting age population of Harris County increased from 1,964,970 in 2000 to 2,281,093 through the end of 2009, representing an estimated total growth of 316,213, or 16%. Of those 316,-123 individuals, 167,184 were Latinos.

Thus, Latinos accounted for 53% of Harris County’s citizen voting age population growth during the first decade of the new millennium. In examining how the Latino population changed over the course of the decade, Plaintiffs’ expert Dr. Matt A. Barreto explained that, when compared to the 2001 Map, the Revised Plan A-l boundaries reduce the overall Latino population and the Latino voting age population in Precinct 2. If the 2001 Map remained in place, then by 2010, 60.1% of Precinct 2’s population would be Latino and 55.2% of the precinct’s voting age population would be Latino.

Under the Revised Plan A-l, however, only 58.2% of Precinct 2’s population is Latino and 53.4% of the precinct’s voting age population is Latino. Further, Dr. Barreto notes that county-wide the percentage of the population comprised by Latino residents increased by 19%, from 32.9% in 2000 to 40.8% in 2010. However, under the Revised Plan A-l, Precinct 2’s Latino fraction of the population only increased by 10.5%. (Plaintiffs’ Ex. 39, at 3). Moreover, Dr. Barreto explained that the Revised Plan A-l will also reduce the number of registered voters in the precinct.

Under the 2001 map, 34.9% of Precinct 2’s citizen voting age population is Latino and 29.7% of registered voters are Spanish surnamed individuals (“SSRV”). Under the Revised Plan A-l, only 33.8% of Precinct 2’s citizen voting age population is Latino and 28.8% of registered voters are Spanish surnamed individuals. (Plaintiffs’ Ex. 39, at 3). D. REDISTRICTING: PRINCIPLES & PRIORITIES 1. Principles & Priorities The first re-districting challenge to the Harris County Commissioner’s Court occurred in 1981.

The litigation waged in connection with the 1981 redistricting ultimately resulted in the creation of Precinct 1 as an African-American opportunity district. (Tr. 3:176). In 1991, Dr. Murray assisted the County in making minor changes to the 1981 map to accommodate the minor population disparities that had formed since the authoring of the map. (Tr. 3:176). The changes, though, were relatively modest and were intended to preserve Precinct l’s status as an opportunity district. (Tr. 3:176). In 2001, Dr.

Murray, once again, served as a general consultant in the redistricting process, advising the County on the ways in which to draw a map that complied with the constitution, the Voting Rights Act, and the County’s Priorities and Principles. See (Tr. 3:177). In the 2001 round of redistricting, the County’s main goal was to cure the population imbalance; in 2001, as was the case in the most recent round of redistricting, the population growth in the eastern portion of the County lagged behind the growth numbers in the countywide growth, leaving Precinct 2 underpopulated. (Tr. 3:178).

To remedy the under-population problems, the County extended the Precinct northward above downtown into the heavily populated area along Hardy Road, Eastex Freeway. (Tr. 3:179). In 2001, the map-drawing process was guided by a statement of priorities and principles for redistricting of Harris County Commissioner’s precincts. (Tr. 3:179-180). After the 2010 census, it was clear that the County would have to engage in another round of redistricting to remedy the population imbalance between the precincts that had occurred over the course of the previous decade.

On June 21, 2011, the Commissioner’s Court issued an order pronouncing the priorities and principles to be applied in the redistricting of the Harris County Commissioner’s Precincts (the “Priorities and Principles”). (Defendants’ Ex. 3). These Priorities and Principles were adopted at the inception of the redistricting process; the County did not initiate in any map drawing until after the adoption of the Priorities and Principles. (Tr. 3:188 — 89).

The first priority and principle requires the four commissioner precincts be of substantially equal population and, in no event, exceed a 10% top-to bottom deviation. (Defendants’ Ex. 3, at 4). Dr. Murray testified that the County implemented this principle to ensure that the County’s map did not violate the Constitution’s one man, one vote principle, which requires population equality. See (Tr. 3: 190). The second priority and principle requires that the four commissioner precincts be contiguous and reasonably geographically compact. (Defendants’ Ex. 3, at 4). Dr.

Murray testified that the second priority, like the first, is designed to ensure that the County’s map does not violate constitutional redistricting safeguards. See (Tr. 3:190). The third priority and principle states that, to the extent possible, the redistricting plan will use identifiable geographic boundaries as precinct boundaries, preserve natural historical boundaries, recognize identifiable communities of interest in a single precinct and avoid splitting neighborhoods when drawing precinct lines. (Defendants’ Ex. 3, at 4). According to Dr.

Murray, the third priority recognizes that redistricting should be conducted in a manner that respects the conveniences and the communal integrity of the people being governed. (Tr. 3:191). In Dr. Murray’s view, the third priority’s admonishment against splitting communities of interest and heeding natural and/or historic borders accomplishes that goal of respect for the communal integrity of the people being governed. (Tr. 3:191).

The fourth priority and principle provides that to the extent possible, the four commissioner precincts should be based on existing composition of the precincts. (Defendants’ Ex. 3, at 4). Dr. Murray explained that the County’s adoption of this principle encourages the parties tasked with redistricting to use the 2001 map as a starting point for the redistricting process. (Tr. 3:191). Dr.

Murray further explained that, in the absence of gerrymandering, the most recent previously employed map is often used as the basis for the redistricting process with modifications made to make the old map legal, in light of the intervening population changes in the years since that map was first adopted. See (Tr. 3:191-92). The fifth priority and principle requires the redistricting plan use whole county voting precincts to draw commissioner’s precincts. (Defendants’ Ex. 3, at 4). Dr. Murray explained that when a voting precinct is split, it is divided amongst two commissioner’s precincts.

Therefore, this priority is designed to minimize the impact of redistricting on the individual voting precincts by preserving the voting precincts as whole units, thereby limiting the need for realignment at the local voting place. (Tr. 3:192). The sixth priority and principle requires that the redistricting plan adhere to (

i) the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and not use race as the predominate factor in establishing commissioner precincts and (ii) the Voting Rights Act and avoid (

a) retrogression in the position of racial, ethnic and language minorities with respect to the effective exercise of their right to vote or electoral franchise and (

b) dilution of the voting strength of racial or language minority citizens. (Defendants’ Ex. 3, at 4). Dr. Murray explained that this priority describes the delicate balancing of competing legal principles involved in the redistricting process. On the one hand, the Fourteenth Amendment prohibits the County from drawing a map solely on the basis of race, but on the other hand, compliance with the Voting Rights Act requires the County to take heed of the racial composition of the map in order to ensure that the map is neither retrogressive nor dilutive. See (Tr. 3:193).

The seventh priority and principle states the redistricting plan should, in recognition of the value of incumbent-constituent services, seek to keep (

i) existing commissioners in their existing precincts and (ii) facilities and service locations established by incumbent commissioners in the precincts of those commissioners. (Defendants’ Ex. 3, at 4). Dr. Murray testified that this precept recognizes that in areas with both a sizeable urbanized population and a size-able unincorporated area, like .Harris County, service delivery and facilities takes on greater importance than it might in more urbanized counties or in purely legislative bodies. (Tr. 3:193-94).

Harris County is unique in that it is one of the only counties in the nation that features a highly urbanized population that does not reside in incorporated cities. (Tr. 3:182). In Harris County, a sizeable faction of the population lives in unincorporated areas— i.e. territory within the bounds of Harris County that is not within the boundaries of a municipality. (Tr. 3:181-82). In 2010, approximately 1.6 million residents of Harris County lived in unincorporated areas. (Tr. 3:182).

In unincorporated areas, basic services, such as road maintenance and facilities management, which ordinarily would be performed by' a municipal government, are instead provided by the Harris County Commissioner’s Court. (Tr. 3:183). According to Dr! Murray, this responsibility makes the delivery of constituent services more important in Harris County than it might be in other counties or purely legislative bodies where representatives are not responsible for the delivery of services. (Tr. 3:194).

The eighth priority and principle states that the redistricting plan should recognize the duties and obligations imposed by law on commissioners to provide services to the residents of precincts and the public investment in facilities, service locations and personnel that has been made to provide such services. (Defendants’ Ex. 3, at 4). Dr. Murray testified that the County and its residents have made large public investments in the County facilities and services and the redistricting plan should honor that investment. (Tr. 3:194). Dr.

Murray testified that the eight priorities and principles are not always harmonious in that adherence to one priority often necessitates the subordination of another priority. See (Tr. 3:192). Dr. Murray explained that these eight principles outline the goals of the redistricting process, but the application of these priorities and principles always involves a give and take. See (Tr. 3:192). The significance accorded to any single priority must, of course, be balanced against the importance of the other priorities. (Tr. 3:192).

Thus, except for a few absolutes, such as the prohibition against a population deviation in excess of 10%, there is always an interplay between the principles and which priorities will take precedence in any given scenario. See (Tr. 3:192). Inevitably, sometimes the County must temper its adherence to one principle in order to preserve the integrity of the map as a whole. (Tr. 4:40). 2. Opportunity Districts and Influence Districts Dr. Murray described Precinct 1 as an opportunity district but described Precinct 2 as an influence district. (Tr. 3:196). Dr.

Murray explained that an opportunity district is a district where a protected minority can elect a candidate of their choice, although not necessarily of their race or ethnicity. In his view, a functioning opportunity district requires a sufficient population, number of registered voters, voter turnout, and cohesiveness. Dr. Murray stated that Precinct 1 has met this standard in every election since 1981. (Tr. 3:196). That said, Dr. Murray recognized that the population changes that had occurred over the course of the last decade threatened Precinct l’s ability to perform as an opportunity district.

In 2000, almost 44% of the population of Precinct 1 was African-American. (Plaintiffs’ Ex. 24, at 1); (Tr. 3:234). At the end of the decade, African-Americans only accounted for 37.3% of Precinct l’s population. (Plaintiffs’ Ex. 24, at 1); (Tr. 3:235). The evidence showed that the African-American population in Precinct 1 was on a downward trend. (Tr. 3:235). In order to preserve Precinct l’s status as a functioning opportunity district, the County would have to augment the African-American population of Precinct 1 to preserve this opportunity district. On the other hand, Dr.

Murray testified that Precinct 2 is a district that does not have a protected minority with sufficient population, registered voter population, voter turnout, and cohesion to elect a candidate of choice. (Tr. 3:196-97). Dr. Murray explained, for instance, that at the time of the 2001 redistricting, he did not believe Precinct 2 was a Latino opportunity district even though it experienced significant Latino growth over the course of the 1990s. (Tr. 3:178). Today, as was the case in 2001, Dr. Murray persists in his assessment that Precinct 2 is not an effective Latino opportunity district. See (Tr. 3:226).

In a memorandum authored by Dr. Murray, titled “Is Harris County Commissioner Precinct 2 an ‘Effective Latino Opportunity District’?” Dr. Murray examined the results of the 2002, 2006, and 2010 general elections to evaluate whether Precinct 2 was a Latino opportunity district. (Defendants’ Ex. 15, at 3). Dr. Murray explained that the data from these three election cycles demonstrated that the Latino-preferred candidate, who in every analyzed election was also the Democratic nominee, did not perform well in the general election.

In 2002, “with the Latino turnout boost provided by Tony Sanchez’s well-funded gubernatorial campaign, the [Latino]-baeked candidates prevailed in 23 of 58 contests in Precinct 2.” (Defendants’ Ex. 15, at 4); (Tr. 3:229). In 2006, Latino-preferred candidates only won six of the 27 contests in Precinct 2. (Defendants’ Ex. 15, at 4); (Tr. 3:229). Finally, in 2010, only one Latino-preferred candidate, former Houston mayor Bill White, prevailed out of the 81 contested elections. (Defendants’ Ex. 15, at 4): (Tr. 3:229).

PERFORMANCE OF LATINO-PREFERRED CANDIDATES IN PRECINCT 2 (AS FORMULATED UNDER THE 2001 MAP) IN THE 2002, 2006, and 2010 ELECTION _CYCLES_ Election Number of Number of Number of % of Latino-Year Contested Latino-Preferred Latino-Preferred Preferred Elections in Candidates that Candidates Candidates _Precinct 2_Prevailed_Defeated_Prevailing 2002_58_23_35_39.7% 2006_27_6_21_22.2% 2010_81_1_80_1,2% TOTAL_166_30_136_18.1% According to Dr.

Murray, this data clearly shows that Precinct 2 is not a Latino opportunity district because the Latino share of Precinct 2’s citizen voting age population and the percentage of Spanish-surname registered voters in the precinct are too low to enable Latino voters to elect the candidates of their choice. (Defendants’ Ex. 15, at 4). Dr. Murray-testified that the low turnout amongst Latinos makes it “impossible for any candidate to win in Precinct 2 by [only] mobilizing Latinos.” (Defendants’ Ex. 15, at 4). Dr.

Murray thus concluded that “even if Latino voters were extremely cohesive and had very high turnout rates vis-a-vis other voters in Precinct 2, it would be extremely difficult for Latinos alone, to elect candidates of their choice given such low citizen voting age population and SSRV percentages.” (Defendants’ Ex. 15, at 1); see also (Tr. 3:226-27). Occasionally, however, Latino-preferred candidates can win in Precinct 2, but they win as a- part of broader coalition that includes African-Americans, cross-over Anglos, and occasionally a few Asian-American voters. (Tr. 3:227); (Defendants’ Ex. 15, at 4).

According to Dr. Murray, Senator Garcia’s 2002 electoral victory was the result of a coalition amongst Latinos, African-Americans, and inner-city Anglos in Precinct 2. See (Defendants’ Ex. 15, at 4); (Tr. 3:227). And even in that 2002 contest, where Senator Garcia received 52.8% of the vote, less than half of her support came from Latinos. (Defendants’ Ex. 15, at 4). In 2002, for instance, Latinos only made up 25% of the total vote in Precinct 2. (Defendants’ Ex. 15, at 2). These coalitions, though occasionally effective, are also quite rare.

In more than 80% of the contested elections in 2002, 2006, and 2010, the Latino-preferred candidate could not secure a majority of the vote in Precinct 2. (Defendants’ Ex. 15, at 4). Nevertheless, the Latino population is sizeable, and this sizeable number of minority voters can be influential in the election of a commissioner. (Tr. 3:197). Accordingly, Dr. Murray concluded that Precinct 2 is currently a Latino influence district rather than an opportunity district. Dr. Murray further opined that transforming Precinct 2 into an performing opportunity district would be difficult because: (

i) Harris County’s Latino population is geographically dispersed throughout the County and (ii) Latinos, generally, have low rates of political participation making it difficult for them to elect their preferred candidates. See (Tr. 3:227-231). With respect to geographic dispersion, Dr. Murray explained that Harris County’s Latino is spread out over the four commissioner’s precincts, making it difficult to fashion a compact district in which Latinos constitute a majority of the citizen voting age population. (Tr. 3:230-31).

Thus, for example, the distance between the growing Latino populations in the northern and western portion of the County and the established Latino population in the eastern portion of the County, makes it difficult to draw a compact and contiguous map that joins both populations. (Tr. 3:231). In his opinion, the geographic dispersion of Harris County’s Latino community makes it nearly impossible to create a geographically compact district, drawn, in accordance with traditional redistricting principles, where Latinos constitute a majority of the citizen voting age population. (Tr. 3:233).

Second, he claims that Latinos in Precinct 2 have low voter turnout, which precludes them from electing their candidates of choice. See (Defendants’ Ex. 15, at 1); (Tr. 3:227). Dr. Murray explained that in 2010, before the adoption of the Revised A-l, 60.1% of the population in Precinct 2 was Latino, but only 34.9% of the citizen voting age population of Precinct 2 was Latino, (Plaintiffs’ Ex. 39, at 4); see also (Defendants’ Ex. 15, at 1), and only 29.7% of Spanish-surname individuals in Precinct 2 were registered to vote. (Tr. 3:227); see also (Plaintiffs’ Ex. 39, at 3).

The low percentage of Spanish surname registered voters and the relatively small number of Latino adult citizens in Precinct 2 limits the ability of Latinos to elect, by themselves, a candidate of their choice. (Tr. 3:227). 3. The County’s Approach to the 2011 Redistricting In Dr. Murray’s view, there were several issues facing the County during this redistricting process. See (Tr. 3:195-96). First, the County had to equalize the distribution of the population across the commissioner’s precincts.

At the end of the previous decade, there was too much deviation in population across the four precincts, so this time redistricting would require redistribution of a much larger share of the population than in prior redistrictings. (Tr. 3:195). Precincts 1 and 2 were under-populated, whereas Precincts 3 and 4 were over-populated. Under the 2001 map, Precinct 2 shared most of its border with Precinct 1.

The County therefore anticipated the possibility of removing population from either Precinct 1 or Precinct 2 and adding it to the other precinct, which would of course worsen the under-population issues of the donating precinct. (Tr. 3:203). Dr. Murray further explained that Precinct 3 does not share a border with Precinct 2 and intimated that the Latino population in Precinct 3 was too geographically remote to remedy Precinct 2’s under-population problem. See (Tr. 3:187).

This left Precinct 4, the only over-populated precinct adjacent to Precinct 2, as the most practical source of population to cure Precinct 2’s under-population problem. Second, the County had to preserve Precinct l’s status as an effective minority-opportunity district. This would be a challenge because the black population in Precinct 1 was declining, while the Latino population in the precinct was growing. (Tr. 3:196). According to Dr.

Murray, Precinct l’s negative African-American growth rate combined with the dramatic Latino growth rate made the task of maintaining Precinct l’s status as an effective opportunity district more challenging than in prior re-districtings. (Tr. 3:186). In 2000, for instance, African-Americans accounted for 44% of the population of Precinct 1, but after the intervening decade they now only accounted for 37.3% of the population, Dr. Murray testified that the historic census data and population trends indicated that Latinos were moving into areas that were predominately African-American. (Tr. 4:35).

In keeping with this trend, Latinos have migrated southward over the course of the last few decades, displacing traditionally African-American pockets of Harris County. (Tr. 4:35). This trend of Latino settlement in the southern portion of the County has changed the racial composition and complexion of the County, such that the Alief, Sunny Side, South Union, and South Park areas, areas which were historically African-American, are trending more multicultural and increasingly Latino, with a decreasing share of the population being African-American. (Tr. 4:36).

Similarly, Latinos have moved into the area between 1-45 and 1-59, which had been referred to as “Redneck Alley,” in the north central part of the County, displacing the formerly Anglo-populated area. (Tr. 4:35). Dr. Murray noted that in his years of experience, once an area begins to trend Latino it does not reverse course; he has never observed an area that was predominately non-Latino and then became predominately Latino revert back to being predominately non-Latino. (Tr. 4:36).

Thus, if an area, like Alief, is currently trending Latino, it is improbable that there will be an influx of non-Latinos (African-Americans or otherwise) over the next 10 to 20 years to reverse the trend of Latino settlement. (Tr. 4:36). In preserving Precinct 1 as an opportunity district, the County had to remain cognizant of these historic population patterns.

Third, with respect to Precinct 2, the County had to address the under-population problem plaguing the precinct, which meant that the County would have to find some way to increase the population of Precinct 2 by at least 100,000 people, (Tr. 3:198), while also trying to preserve Latino influence (Tr. 3:197). Dr. Murray appreciated that the mechanics of preserving Latino influence in Precinct 2 might be different under the new Republican Precinct 2 Commissioner Jack Morman than they were in the past under the former Democratic Precinct 2 commissioners. Dr.

Murray suggested that under the new commissioner, the incumbency-protection considerations were probably different than they were under the former Democratic commissioners. (Tr. 3:197; Tr. 4:43). It was clear that the four commissioners all had an interest in the outcome of the redistricting process, with each commissioner taking a keen interest in the way in which the redistricting would alter their precincts. (Tr. 3:198).

Given that and the major issues related to population distribution, the preservation of Precinct l’s status as an opportunity district, and the preservation of minority influence in Precinct 2, the County understood the redistricting process would involve balancing the Priorities and Principles with the desires of the commissioners. (Tr. 3:198-99). 4. Performing the Redistricting The County hired Dr. Murray to assist it with the redistricting process. Dr. Murray explained that he began by first considering how to equalize the distribution of the population across the four commissioner’s precincts. (Tr. 3:199).

To that end, Dr. Murray drafted an email on June 18, 2011, identifying eight areas, mostly along the borders of the precincts, that were population rich and therefore could be appended to the adjacent precinct, to help correct the population imbalance. (Defendants’ Ex. 66); see also (Tr. 3:199). a. Proposed Changes The first locale Dr. Murray considered was. the area east of Lake Houston in northeast Harris County. The six precincts comprising the area east of Lake Houston had a total population of 32,000. (Defendants’ Ex. 66, at 1).

Moreover, this area was in Precinct 4, which was overpopulated, and shared a border with Precinct 2, which was under-populated. (Tr. 3:200). Thus, this area east of Lake Houston presented an opportunity for a simple swap between Precinct 4 and Precinct 2. The second area he considered was the Atascocita area, west of Lake Houston, because this area was in Precinct 4 and bordered the under-populated Precinct 2. The six voting precincts comprising the Atascocita area had a total population of approximately 24,000. See (Defendants’ Ex. 66, at 2); see also (Tr. 3:201). Third, Dr.

Murray considered the King-wood area, in north Harris County, because the twelve voting precincts comprising the Kingwood area had a population of 56,000 and this area was close to both Precincts 1 and 2. (Defendants’ Ex. 66, at 3); (Tr. 3:201). Fourth, Dr. Murray area considered the area located in the far southeast

section of Harris County west of the Gulf Freeway. The eight voting precincts comprising this area have a total population of 28,229 residents. At the time, this area was located in the under-populated Precinct 1, but Dr. Murray thought these eight precincts could be moved to Precinct 2, thereby mitigating Precinct 2’s under-population problem. See (Tr. 3:201); (Defendants’ Ex. 66, at 4). The fifth area considered was comprised of thirteen precincts in north central Harris County.

The area, then located in Precinct 1, was close to the northern neck of Precinct 2 and boasted a population of approximately 78,400 people. (Defendants’ Ex. 66, at 5). If added to Precinct 2, this population-rich area would go a long way toward remedying Precinct 2’s underpopulation problem. (Tr. 3:202). The sixth location considered was the Wallisville area north of Interstate 10. The nine voting precincts comprising the Wallisville area had a total population of 61,769. (Defendants’ Ex. 66, at 6).

This area, then located in Precinct 2, lies along the border of Precinct 1; Wallisville has a growing black population and most residents are homeowners, rather than renters. (Tr. 3:204). Dr. Murray considered removing this area from Precinct 2 and adding it to Precinct 1 in an effort to temper Precinct l’s under-population problem. (Tr. 3:204). The seventh area under consideration was the diverse and densely populated area of Alief. (Tr. 3:207). This area, then located in Precinct 3, was comprised of thirteen voting precincts that collectively boasted a population of almost 115,000. (Defendants’ Ex. 66, at 7).

Dr. Murray testified that he discussed moving some of the population from Precinct 3’s Alief area to Precinct 1, as he did during the 2001 redistricting. (Tr: 3: 206). In the 2011 redistricting, Commissioner Radack, the commissioner of Precinct 3, had recommended that the population imbalance between Precinct 1 and 3 be addressed using the same method the County employed in 2001, taking population from the Alief area and adding it to Precinct 1. (Tr. 3: 206).

The eighth and final area under consideration was comprised of nine voting precincts in the Greenspoint/ Bush Airport area in north central Harris County. (Tr. 3:207); see also (Defendants’ Ex. 66, at 7). This area, then located in Precinct 4, had a population of approximately 85,300 and had a sizeable African-American population. (Tr.»3:207); see also (Defendants’ Ex. 66, at 7). This area, comprised almost entirely of home dwellers, had the fastest-growing African-American population in Harris County. (Tr. -3:207-08).

Given that this area was located in Precinct 4, which was over-populated, the Bush Airport area was a natural contender for relocation to the Precinct 1, which was underpopulated. See (Tr. 3:207). b. Implemented Changes After conducting this population analysis, Dr. Murray then considered the eight Priorities and Principles and with these principles and population statistics in mind, Dr. Murray drafted approximately six preliminary maps for discussion with the attorneys for the County. (Tr. 3:205). Dr.

Murray testified that he mainly interacted with the attorneys but also had some limited contact with the commissioners. Dr. Murray explained that this is a political process with four commissioners each with his own concerns. (Tr. 4:23). Dr. Murray admitted that the map would have come out differently if Sylvia Garcia was the Precinct 2 County commissioner, for she would have encouraged efforts to increase the number of Democratic voters in Precinct 2. (Tr. 4:43). Despite these political considerations, Dr.

Murray contends that the Revised Plan A-l respects the County’s Redistricting Priorities and Principles in that it: (

i) substantially equalizes the population, well within the permissible levels of deviation; (ii) creates contiguous commissioner precincts; (iii) was developed based on the existing precincts as they were fashioned in the 2001 map; (iv) minimally splits voting precincts, splitting only a dozen precincts; and (

v) minimizes the number of people changing precincts, in that most residents are in the same precinct, under the Revised Plan A-l, as they were in under the 2001 map. (Tr. 3: 210-12). In creating the Revised Plan A-l, the County made substantial changes,to both Precinct 1 and Precinct 2. First, Precinct 1 is extended northward to Farm to Market Road 1960, picking up the sizeable Black homeowner population hving near the Bush Airport. (Tr. 3:212). This area has experienced substantial African-American growth and the homeowners who populate this area are a very important voting constituency. (Tr. 3:212).

Second, Precinct 1 also is extended eastward, picking up a sizeable group of voters from the Wallisville area, another area with a large number of Black homeowners. (Tr. 3:213). Third, a small portion of the Alief area, which was previously in Precinct 3, was added to the southwest side of Precinct 1. However, the Revised A-l did not move all thirteen voting precincts of the Alief area. (Tr. 3:212). Dr.

Murray explained that even though the County wanted to preserve Precinct l’s status as an opportunity district, which, of course, required the County to be mindful of the African-American population in Precinct 1, the County did not believe that bolstering Precinct l’s population with residents of Alief would best preserve Precinct l’s status as an opportunity district. (Tr. 3:213-14). According to Dr. Murray, the Alief area was rapidly built in the 1970s and was predominately Anglo, but after the oil boom bust the Anglos left. In the 1980s and 1990s, this was a major area of Black growth.

As the millennium approached, the Black population in Alief began to move across the county line into Fort Bend County, but the Latino population in Alief flourished. (Tr. 3:214). Today, • the African-Americans who remain are mostly apartment-dwellers, because this area does not have many single family dwellings. (Tr. 3:215).

Given these demographic trends, Harris County chose not to go further west into Alief to remedy Precinct l’s under-population, but rather it chose to go further north into the Bush Airport area and the Wallisville area to pick up home-owning African-American populations with strong voter turnout! (Tr. 3:216). Again, Dr. Murray stressed that the Bush Airport area and Wallisville area are areas of African-American growth and both areas are populated with middle class home-owning voters. Therefore, the Bush Airport area and the Wallisville area were much better sources of voter population than Alief. (Tr. 3:216).

Fourth, there were also some small swaps in the Hobby Airport area, with one voting precinct, Precinct 285, moving from Precinct 2 to Precinct 1, and another precinct, Precinct 36, moving from Precinct 1 to Precinct 2. (Tr. 3:212). ■ Fifth, the Revised Plan A-l ensures that Precinct l’s significant service facilities remain in Precinct 1. Dr.

Murray explained that the Revised A-l map keeps the Challenger Seven Memorial Park in the southeast portion of Precinct 1, the Deussen Park in the eastern part of the precinct, and the El Franco Lee Community Center and the Hardy Road facility in Precinct 1, as well. (Tr. 3:217). Ultimately, under the Revised A-l, the African-American population of Precinct 1 increased from 37.3% to 39%, mainly by the addition of the growth area in north central Harris County, near Bush Airport area. (Tr. 3:236). According to Dr.

Murray, the addition of this area will compensate for the declining African-American population elsewhere and may reverse the trend of declining Black population in Precinct 1. (Tr. 3:236). As for Precinct 2, the County had to remedy the precinct’s under-population problem and preserve Latino influence in the precinct. See (Tr. 3:197-98).

The County addressed these issues by extending the eastern portion of the precinct northward into the existing Precinct 4 and adding thirteen precincts east and west of Lake Houston, to Precinct 2, and second, the County extended the neck of the precinct north of downtown. (Tr. 3:218). 5. Public Review of the Map: Opportunity for Public Comment As part of the redistricting process, the County held numerous public hearings before adopting the Revised Plan A-l. (Tr. 3:220).

The County held a hearing in each of the four precincts and then also held a meeting downtown at the County courthouse, for a total of five. (Tr. 3:220). The first of these five meetings was in Precinct 2. At that meeting, Dr. Murray made a presentation on the original A-l map. (Tr. 3:221). According to Dr. Murray, this meeting was well-attended and the public comments were polarized, with some attendees applauding the proposed map and others criticizing the County’s proposal. (Tr. 3:221).

This was in sharp contrast to the public hearing that occurred in Precinct 1, in that most of the attendees at the Precinct 1 meeting favored the proposed changes to Precinct 1. (Tr. 3:221-22). The County was responsive to the concerns expressed by the community and considered the concerns raised by the County’s residents. For instance, the County considered alternative plans that were proposed by citizens, such as the Guerra-Jara plan, which was proposed by members of Precinct 2’s Latino community.

The County ultimately rejected this plan because the County determined that the Guerra-Jara plan was inconsistent with the priorities and principles the County had adopted and resulted in major service disruptions in Precinct 1, which would lose all four major service facilities. (Tr. 3:224). Although some concerns, like the Guerra-Jara plan, were rejected, others were implemented. For example, the original A-l map took two voting precincts from the Anglo populated Kingwood area, in Precinct 4, and added them to Precinct 2. (Tr. 3:222).

After the hearings, these Republican-leaning Kingwood districts were left in Precinct 4. (Tr. 3:223). The Revised Plan A-l is the product of those revisions to the original A-l map. 6. Plaintiffs’ Criticism of the Revised Plan A-l According to Plaintiffs, the Revised Plan A-l splits five communities of interest, which are census-designated places: Al-dine, Sheldon, Humble, Channelview, and Atascocita. (Tr. 4:26). In response to these concerns, Dr. Murray first noted that Aldine, Sheldon, Channelview, and Atascocita are not cities, although he conceded that each is, to a limited extent, a community of interest.

See (Tr. 4:25-27). Dr. Murray seems to intimate that even if these four locales are census-designated places, they are not municipalities and therefore splitting them does not carry the same import as splitting a municipality. See (Tr. 4:27). In his view, these are not well-defined communities. Second, even if Humble is a city and not merely a census designated place, any fracturing of Humble occasioned by the Revised Plan A-l is insignificant because Humble is a small city with a small population with limited prospects for growth given' that the city is circumscribed by the City of Houston. (Tr. 4:25, Tr. 4:41).

Third, Dr. Murray testified that had the County brought in all of Atascocita in the Revised Plan A-l, rather than split it, that would have driven the Latino numbers down in P

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