Petteway v. Galveston Cnty.

698 F.Supp.3d 952

Terry PETTEWAY, et al., Plaintiffs, v. GALVESTON COUNTY, et al., Defendants.

No. 3:22-cv-57

United States District Court, S.D. Texas, Galveston Division

Signed October 13, 2023

Bernadette Samson Reyes, Pro Hac Vice, Sonni Waknin, Pro Hac Vice, UCLA Voting Rights Project, Los Angeles, CA, Mark P. Gaber, Pro Hac Vice, Simone Leeper, Pro Hac Vice, Valencia Richardson, Pro Hac Vice, Alexandra Copper, Pro Hac Vice, Campaign Legal Center, Washington, DC, Neil G. Baron, Law Office of Neil G. Baron, League City, TX, Chad W. Dunn, Brazil & Dunn, Austin, TX, for Plaintiffs Honorable Terry Petteway, Honorable Derrick Rose, Honorable Penny Pope, Honorable Sonny James.

Neil G. Baron, Law Office of Neil G. Baron, League City, TX, Chad W. Dunn, Brazil & Dunn, Austin, TX, for Plaintiff Roosevelt Henderson.

J. Christian Adams, Pro Hac Vice, Maureen S. Riordan, Pro Hac Vice, Public Interest Legal Foundation, Alexandria, VA, Jason Brett Torchinsky, Pro Hac Vice, Shawn T. Sheehy, Pro Hac Vice, Dallin Brockbank Holt, Holtzman Vogel Baran Torchinsky & Josefiak PLLC, Haymarket, VA, Robert Barron Boemer, Galveston County Legal Department, Galveston, TX, Jordan Raschke Elton, Joseph R. Russo, Jr., Greer Herz Adams LLP, Galveston, TX, Angela Olalde, Greer Herz Adams LLP, League City, TX, Dalton L. Oldham, Austin, TX, James Edwin Trainor, III, Trainor Law Firm, PC, Austin, TX, Joseph M. Nixon, The Nixon Law Firm, PC, Houston, TX, for Defendants Texas Galveston County, Honorable Mark Henry.

Dallin Brockbank Holt, Holtzman Vogel Baran Torchinsky & Josefiak PLLC, Haymarket, VA, Angela Olalde, Greer Herz Adams LLP, League City, TX, Jordan Raschke Elton, Joseph R. Russo, Jr., Greer Herz Adams LLP, Galveston, TX, for Defendant Dwight D. Sullivan.

Randy Ray Howry, Howry Breen Herman LLP, Austin, TX, for Defendant Stephen Holmes.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Jeffrey Vincent Brown, United States District Judge.

Table of Contents

I. Introduction . . . 961

II. Findings of Fact . . . 962

A. Procedural History . . . 962

B. Parties . . . 964

1. Plaintiffs 964

2. Defendants . . . 965

C. Expert Witnesses' Credibility . . . 965

1. Gingles Precondition One . . . 965

2. Gingles Preconditions Two and Three . . . 967

3. Senate Factors and Arlington Heights Factors . . . 969

D. Galveston County Demographics and Voting Patterns . . . 970

1. Sufficiently Large and Geographically Compact . . . 971

a. Traditional Redistricting Criteria . . . 972

b. Geographically Compact . . . 974

2. Politically Cohesive . . . 975

3. Cannot Elect Candidate of Choice . . . 978

4. On Account of Race . . . 979

E. Discriminatory Impact of the Enacted Plan . . . 980

F. Galveston County Voting and Redistricting . . . 981

1. History of Discrimination in Voting Practices . . . 981

2. Attorney General's Objections . . . 982

3. Public Input and Transparency in Prior Redistricting . . . 984

G. The 2021 Redistricting Process . . . 985

1. Sequence of Events . . . 985

a. April 2021—Engaging Redistricting Counsel . . . 985

b. August 2021—Census Data Released . . . 986

c. October 14—Hiring a Demographer . . . 987

d. October 17—Bryan Creates Map 2 . . . 987

e. Late October—Finalizing and Announcing the Maps . . . 988

f. November 12—The Enacted Plan . . . 989

2. Deviations from Prior Redistricting Cycles . . . 990

a. No Redistricting Timeline . . . 990

b. No Redistricting Criteria . . . 991

c. Lack of Transparency in Engaging Counsel . . . 991

d. Lack of Public Notice and Comment . . . 991

e. The November 12 Special Meeting . . . 993

f. Disregard for Public Input from Minority Residents . . . 994

g. Excluding Commissioner Holmes . . . 995

3. Purported and Actual Redistricting Criteria . . . 995

H. Ongoing Discrimination Touching on Participation in Voting . . . 997

1. Contemporary Voting Barriers . . . 998

2. Lack of Electoral Success . . . 999

3. Responsiveness . . . 1000

4. Education . . . 1001

5. Employment and Poverty . . . 1001

6. Housing . . . 1002

7. Public Health . . . 1003

8. Criminal Justice . . . 1003

III. Conclusions of Law . . . 1003

A. Section 2 of the Voting Rights Act . . . 1004

1. Step One—Preconditions . . . 1005

a. Sufficiently Large and Geographically Compact . . . 1006

b. Political Cohesion . . . 1009

c. Cannot Elect Candidate of Choice . . . 1010

2. Step Two—Totality of the Circumstances . . . 1011

3. Strict Scrutiny . . . 1015

B. Remaining Constitutional Claims . . . 1016

IV. Relief . . . 1017

V. Conclusion . . . 1018

I. Introduction

This is a redistricting case brought under the Voting Rights Act and the Fourteenth and Fifteenth Amendments. It was tried to the bench from August 7-18.

On the third day of trial, William S. Cooper¹ — one of the experts for the NAACP plaintiffs² — perfectly described the heart of this case, which challenges the commissioners-precinct plan that the Galveston County Commissioners Court adopted in November 2021 ("the enacted plan") that dismantled Precinct 3 — the only Black-and-Latino-dominant³ precinct in the county:

Q. What, if anything, do you observe about the differences between [the] benchmark and now the new 2021 enacted [plan]?

A. Well, if you look at the underlying census data, Precinct 3 went from being a Black plus Latino majority precinct to being a precinct with the lowest percentage of Blacks and Latinos in the county. . . . It's just a textbook example of a racial gerrymander.⁴ It's — it's egregious. I have never seen anything this bad. Because normally if a minority-majority district is in place, then you are not going to see a locality attempt to eliminate it unless [it] had no choice due to demographic changes.

Here there was absolutely no reason to make major changes to Precinct 3. It was just — it was mean-spirited. I've never — I mean, I'm just blown away by this. It's not fair, and . . . I am at a loss for words.

Dkt. 223 at 42-43.⁵ The court finds the defendants' actions to be fundamentally inconsistent with § 2 of the Voting Rights Act. Although Galveston County is no longer subject to preclearance, the defendants still must comply with the edicts of § 2. They have not done so here. So the court has reached a grave conclusion: it must enjoin the defendants from using the enacted map in future elections.

* * *

On June 1, 2022, the court consolidated Civil Action Nos. 3:22-cv-93 and 3:22-cv-117 with Civil Action No. 3:22-cv-57, resulting in one action under Civil Action No. 3:22-cv-57. Dkt. 45. All three sets of plaintiffs — the Petteway plaintiffs,⁶ NAACP plaintiffs, and the United States — challenge the enacted plan as violating § 2 of the Voting Rights Act. The Petteway and NAACP plaintiffs also challenge the enacted plan as (1) intentionally discriminatory against Galveston County's Black and Latino voters in violation of the Fourteenth and Fifteenth Amendments and (2) racially gerrymandered in violation of the Fourteenth Amendment.

The court convened a bench trial on August 7, 2023, which lasted until August 18. After thoroughly reviewing the entire record, the court finds that the enacted plan illegally dilutes the voting power of Galveston County's Black and Latino voters by dismantling Precinct 3, the county's historic and sole majority-minority commissioners precinct. The enacted plan distributes the county's Black and Latino voters, who comprise 38% of the county's eligible voter population, among all four newly drawn commissioners precincts. As a result, those minority voters have been subsumed in majority-Anglo precincts in a county with legally significant racially polarized voting. Under the enacted plan, Anglo voters will likely continue to vote as a bloc to usually elect candidates who are not the Black and Latino voters' candidates of choice, preventing Black and Latino voters from participating equally in county government.

The court finds in favor of the plaintiffs and enjoins the use of the enacted plan.

II. Findings of Fact

1. Findings of fact and conclusions of law are required in all actions "tried on the facts without a jury." Fed. R. Civ. P. 52(a)(1). A district court must "find the facts specially and state its conclusions of law separately." Id. "Rule 52(a) does not require that the district court set out findings on all factual questions that arise in a case." Valley v. Rapides Par. Sch. Bd., 118 F.3d 1047, 1054 (5th Cir. 1997); see also Century Marine Inc. v. United States, 153 F.3d 225, 231 (5th Cir. 1998) (quoting Burma Navigation Corp. v. Reliant Seahorse M/V, 99 F.3d 652, 656 (5th Cir. 1996)) (noting that Rule 52(a) "exacts neither punctilious detail nor slavish tracing of the claims issue by issue and witness by witness"). Instead, a court satisfies Rule 52 if it "afford[s] the reviewing court a clear understanding of the factual basis for [its] decision." Holman v. Life Ins. Co. of N. Am., 533 F. Supp. 3d 502, 506 (S.D. Tex. 2021) (quoting Interfirst Bank of Abilene, N.A. v. Lull Mfg., 778 F.2d 228, 234 (5th Cir. 1985)). And if the court fails to make a specific finding on a particular issue, the reviewing court "may assume that the court impliedly made a finding consistent with its general holding so long as the implied finding is supported by the evidence." Century Marine Inc., 153 F.3d at 231.

2. To the extent that any factual finding reflects or is better understood as a legal conclusion, it is also deemed a conclusion of law. Likewise, to the extent that any legal conclusion reflects or is better understood as a factual finding, it is also deemed a factual finding.

A. Procedural History

3. In February 2022, the Petteway plaintiffs challenged the enacted plan as discriminatory and in violation of § 2 of the Voting Rights Act, the Fourteenth Amendment, and the Fifteenth Amendment. Dkt. 1.

4. About one month later, the United States filed suit, alleging that the enacted plan violates § 2 of the Voting Rights Act. See United States v. Galveston County, No. 3:22-cv-93 (S.D. Tex. Mar. 24, 2022), Dkt. 1.

5. Three weeks later, the NAACP plaintiffs also...