No. 94-988
In the Supreme Court of the United States
OCTOBER TERM, 1994
UNITED STATES OF AMERICA, APPELLANT
v.
AL VERA, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
JURISDICTIONAL STATEMENT
DREW S. DAYS, III
Solicitor General
DEVAL L. PATRICK
Assistant Attorney General
PAUL BENDER
Deputy Solicitor General
IRVING L. GORNSTEIN
Assistant to the Solicitor General
STEVEN H. ROSENBAUM
MARK L. GROSS
Attorneys
Department of Justice
Washington, D.C. 20530
(202)514-2217
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QUESTION PRESENTED
Whether Districts 18, 29, and 30 in Texas's con-
gressional redistricting plan are narrowly tailored to
further a compelling interest.
(I)
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II
             
PARTIES TO THE PROCEEDING
Plaintiffs are Al Vera, Edward Blum, Edward
Chen, Pauline Orcutt, Barbara L. Thomas, and Ken-
neth Powers.
Defendants are Ann Richards, Governor of the
State of Texas; Bob Bullock, Lieutenant Governor;
Pete Laney, Speaker of the House of Representa-
tives; Dan Morales, Attorney General; and Ron Kirk,
Secretary of State.
Defendant-Intervenors are Rev. William Lawson,
Zollie Scales, Jr., Rev. Jew Don Boney, Deloyd T.
Parker, Dewan Perry, Rev. Caesar Clark, David
Jones, Fred Hofheinz, Judy Zimmerman, Robert
Reyes, Angia Garcia, Robert Anguiano, Sr., Dalia
Robles, Nicolas Dominguez, Oscar T. Garcia, Ramiro
Gamboa, League of United Latin American Citizens
and the United States.
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TABLE OF CONTENTS
Page
Opinion below  . . . . 1
Jurisdiction . . . . 1
Constitutional and statutory provisions involved  . . . . 2
Statement . . . . 2
The question presented is substantial . . . . 10
Conclusion  . . . . 17
Appendix A . . . . 1a
Appendix B . . . . 105a                       
Appendix C . . . . 107a                    
Appendix D . . . . 109a
Appendix E . . . . 111a                         
TABLE OF AUTHORITIES
Cases:
Burns v. Richardson, 384 U.S. 73 (1966) . . . . 12
Davis v. Board of Sch. Comm'rs, 402 U.S. 33
  (1971)  . . . . 13                    
Gaffney v. Cummings, 412 U.S. 735 (1973) . . . . 12     
Shaw v. Hunt, No, 92-202-CIV-5-BR (E.D.N.C.
  Aug. 22, 1944), appeal pending, No. 94-923 . . . . 15 
Shaw v. Reno, 113 S. Ct. 2816 (1993) . . . . 2, 10, 11, 14, 16
Thornburg v. Gingles, 478 U.S. 30 (1986) . . . . 11, 14
United States v. Paradise, 480 U.S. 149 (1987 ) . . . . 17
White v. Weiser, 412 U.S. 783 (1973) . . . . 12
Wygant v. Jackson Bd. of Educ., 476 U.S. 267
  (1986) . . . . 13
Constitution and statutes:
U.S. Const. Amend. XIV (Equal Protection
  Clause) . . . . 2, 12-13, 15
Voting Rights Act, 42 U.S.C. 1973 et seq.:
    2,42 U.S.C. 1973 . . . . 2, 3, 11, 14, 111a
    5,42 U.S.C. 1973c . . . . 2,  3, 111a
(III)
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In the Supreme Court of the United States
OCTOBER TERM, 1994
No.
UNITED STATES OF AMERICA, APPELLANT
v.
AL VERA, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
   FOR THE SOUTHERN DISTRICT OF TEXAS
JURISDICTIONAL STATEMENT
OPINION BELOW
The opinion of the three-judge court (App., infra,
1a-104a) is reported at 861 F. Supp. 1304.
JURISDICTION
An order of the three-judge court was entered on
September 2, 1994. App., infra, 105a-106a. That
order was amended to afford injunctive relief on
September 20, 1994. App., infra, 107a-108a. A no-
tice of appeal was filed on October 3, 1994. App.,
infra, 109a-110a. The jurisdiction of this Court is
invoked under 28 U.S.C. 1253.
(1)
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   CONSTITUTIONAL  AND
STATUTORY PROVISIONS INVOLVED
The. Equal Protection Clause of the Fourteenth
Amendment provides that "[n]o State shall * * *
deny to any person within its jurisdiction the equal
protection of the laws." The relevant statutory pro-
visions are Section 2 and Section 5 of the Voting
Rights Act, 42 U.S.C. 1973, 1973c, which are repro-
duced in the Appendix, infra, 111a-113a.
 STATEMENT
This case involves a challenge to the congressional
redistricting plan adopted by the State of Texas in
1991. A three-judge court invalidated three majority-
minority districts in the plan after finding that they
violated constitutional standards for redistricting es-
tablished in Shaw v. Reno, 113 S. Ct. 2816 (1993).
The United States, a  defendant - intervenor below, has
appealed from that judgment. The State of Texas
and private intervening defendants have also ap-
pealed, and they have filed separate jurisdictional
statements.
1. The population of the State of Texas grew sub-
stantially between 1980 and 1990. App., infra 9a.
As a result of the 1990 census, Texas was allocated
three additional congressional seats in 1991, giving
it a total of 30. Ibid. The growth of the Hispanic
and black populations in Texas during the 1980s was
particularly dramatic. Id. at 9a-10a. The Hispanic
population increased by over 45 %., the black popula-
tion increased by nearly 17 %., while the Anglo popu-
lation increased by 10%. Id. at 10a. Much of the
growth in the Hispanic and black populations oc-
curred in Dallas, Harris, and Bexar Counties. Id. at
10a-12a. In recognition of that growth, the Texas
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legislature decided to place Texas's three new con-
gressional districts in those three counties. Id. at 19a.
This appeal involves districts drawn in Dallas and
Harris Counties within the metropolitan areas of
Dallas and Houston. In deciding upon the composi-
tion of those districts, the legislature took into ac-
count its obligations under Sections 2 and 5 of the
Voting Rights Act. App., infra, 18a-22a. The leg-
islature believed that unless the two new districts
in Dallas and Harris Counties gave minority vot-
era an opportunity to elect candidates of their
choice, the State ran a substantial risk of vio-
lating the Voting Rights Act Id. at 19a, 20a n.12.
The legislature also believed that considerations of
fairness supported the creation of districts that
would give minority voters in these two counties a
chance to elect candidates of their choice. Id. at 20a
`n.12. The legislature therefore decided along bipar-
tisan lines to create a `new district in Dallas County
in which blacks would have an opportunity to elect
the candidate of their choice `and a new district in
Harris County where Hispanics would have an op-
portunity to elect the candidate of their choice. Id. at
19a, 20a n.12. The legislature also agreed to recon-
figure the preexisting majority-minority district in
Harris County to ensure that black voters in that
county would continue to be able to elect the candi-
date of their choice. Id. at 20a-21a. The legislature
believed that a failure to take that step could be
viewed as retrogressive under Section 5 of the Voting
Rights Act. App., infra, 20a.
While the legislature was committed to drawing
districts that would increase the opportunity for
blacks and Hispanics to elect candidates of their
choice, its "overriding" objective statewide was" to
protect incumbents. App. infra, 24a-27a. According
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to participants in the process, incumbent members
of the congressional delegation played a significant
role in determining the composition of their districts.
Id. at 25a. The result was that district boundaries
frequently divided counties, cities, neighborhoods,
and regions. Id, at 68a.
Texas has traditionally viewed incumbency protec-
tion as the most important consideration in redis-
tricting. Following the 1960 Census, the state gained
a congressional seat and redistricted by creating an
at-large seat, which allowed all incumbents' districts
to remain intact. App., infra, 12a. Later in the
1960s, Texas created a district that traversed a large
portion of the State in order to protect an incum-
bent. Id. at 12a-13a. In the 1970s, a state redistrict-
ing delegation flew to Washington to meet with the
Texas congressional delegation on a group and indi-
vidual basis. Id. at 13a. A participant in the 1980s
and 1990s redistricting battles testified that "for the
most part, the only traditional districting principles
that have ever operated here are that incumbents are
protected and each party grabs as much as it can."
Id. at 13a n.9,
2. a. The majority-black District in Dallas is Dis-
trict 30. That district has a core area which con-
tains half of the district's population and is 697.
black. App., infra, 29a; State Exh. 33. The district
then branches off into seven segments, each of which
is highly irregular in shape. Ibid. The segments are
each between 20 % and 38% black. State Exh. 33.
Overall, the district is approximately 50% black.
App., infra, 30a. A 50 % black district was viewed
by the legislature as necessary in order to provide
black voters an opportunity to elect the candidate of
their choice because whites usually vote as a bloc
against black-preferred candidates and because there
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was little evidence of coalition voting between blacks
and Hispanics in Dallas County. Id. at 22a-24a.
The boundaries of District 30 were the product of
compromise among three legislators: Eddie Bernice
Johnson, Martin Frost, and John Bryant. App., infra,
35a-38a. Johnson was then a Democratic state sena-
tor from Dallas County who aspired to run in the
new district; Frost and Bryant were incumbent Dem-
ocratic Congressmen from Dallas. Johnson sought to
draw a district in which blacks would constitute a
majority of the population. Id. at 30a. Originally,
Johnson proposed a majority-black district that was
far more compact than District 30, kept neighbor-
hoods intact, and did not split any precincts. Id. at
35a 11..22, 78a. That district, however, included areas
that had been part of Frost's and Bryant's districts.
It consequently drew opposition from Frost and
Bryant and was quickly abandoned. Id. at 35a n.22.
The political reality that Johnson faced was that
Frost and Bryant wanted to keep as much of their
prior districts as possible. Frost and Bryant, who are
white, had a particular interest in retaining black
voters, who had voted overwhelmingly Democratic in
the past. App., infra, 35a-38a. In order to accommo-
date Frost and Bryant while also drawing a new
majority-black district, the State created the irregular
extensions that characterize the borders of District
30. Ibid.
b. The majority-black district in Harris County is
District 18; the majority-Hispanic district is District
29. App., infra, 40a. The lines separating those two
districts are highly irregular and closely track His-
panic and black population concentrations. Id. at
40a-41a. Blacks constitute approximately 51% of the
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population in District 18; Hispanics constitute 60.6%
of the population in District 29. Id. at 40a.
In prior redistrictings, blacks and Hispanics had
been combined to form a majority in a district that
had elected a black candidate. The historic coalition
between blacks and Hispanics, however, had begun to
break down. App., infra, 22a-23a. At the outset of
redistricting, Hispanics made clear that they opposed
the creation of districts in which blacks and Hispanics
were combined to form a majority. Id, at 23a. In-
stead, Hispanic leaders proposed to create a new ma-
jority-Hispanic district while preserving a majority-
minority district in which blacks would continue to be
able to elect the candidate of their choice. Id. at 23a,
42a-43a. A consensus in the legislature emerged to
support that proposal. Id. at 42a.
The minority populations in Harris County are
sufficiently concentrated to permit the drawing of
either one reasonably compact majority-black district,
or one reasonably compact majority-Hispanic dis-
trict. State Exhs. 12A, 12B. To draw both a
majority-black district and a majority-Hispanic dis-
trict, however, it was necessary to draw districts
with somewhat irregular lines. Martinez Dep. Exh.
16. Political considerations caused the district lines to
become even more irregular. A logical way to re-
configure the existing majority-black district would
have been, to model it upon an existing majority-
black State Senate district. App., infra, 44a & n.29.
A proposal to do that, however, was blocked by Mike
Andrews, an incumbent representative of a majority-
white district, who would have lost a large part of his
congressional district under that proposal. Id. at 44a.
The final shape of this district and the abutting
majority-Hispanic district was the product of com-
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promise between Roman Martinez and Gene Green,
both of whom were State senators who aspired to
run in the new district. Id. at 42a & n.27. Green
wanted the new district to include a group of Anglo
voters who had voted for him as State Senator. Id.
at 44a-45a. That forced the drawing of highly irreg-
ular lines to capture additional Hispanic voters in
order to retain an Hispanic majority in the district
Ibid. 3. Appellees, who are six Texas voters, filed suit
against the Governor of Texas and several other state
officials. App., infra, 6a. They alleged that 24 of the
State's 30 congressional districts, including the three
districts at issue in this appeal, were the product of
racial gerrymandering and lacked sufficient justifica-
tion. Id. at 4a, 6a-7a. The district court permitted
the United States, six African-American voters, the
League of United Latin American Citizens, and seven
Hispanic voters to intervene as defendants. Id. at
7a. After a trial, the district court concluded that the
three districts at issue here were unconstitutional.
Id. at 4a-5a The court upheld the other districts
challenged by appellees. Id. at 5a.
The court held that redistricting is suspect under
Shaw when it results in "bizarrely shaped districts
whose boundaries were created for the purpose of
racially segregating voters." App., infra, 65a. In
contrast, the court held, a majority-minority district
is not constitutionally suspect if it "reasonably ad-
heres to objective districting factors." Ibid.
Applying that test, the court held that District 30
in Dallas County was suspect. The court found that
the district's boundaries were "convoluted" and nei-
ther compact nor contiguous. App., infra, 77a-78a.
The court also found that the district was deliberately
drawn in that manner to include a population that
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was 50% black. Ibid. The court rejected the State's
reliance on incumbency protection as a non-racial ex-
planation for the shape of District 30. The court
found that, while "the infighting among Congress-
man Frost, Bryant, and then- [State] Senator John-
son for `sympathetic' voters was fierce, * * * many
of the voters being fought over were African-
Americans." Id. at 79a. The court therefore con-
cluded that incumbency protection "was not a coun-
tervailing force against racial gerrymandering." Id.
at 81a. Instead, the court concluded, "racial gerry-
mandering was an essential part of incumbency pro-
tection, as African-American voters were deliberately
segregated on account of their race among several
Congressional districts." Ibid.
The court held that Districts 18 and 30 in Harris
County were also suspect. The court found that the
"tortuously drawn" lines dividing those districts ap-
pear "utterly irrational-unless one factors in the
overlap between these district boundaries and the
racial makeup of their underlying populations." App.,
infra, 83a-84a. The court therefore concluded that
"[t]he goal of separating Hispanic and African-
American residents from each other and from the
white population for purposes of voting led to the
creation of these particular district-s." Id. at 84a.
The court again rejected the State's reliance on in-
cumbency protection as a non-racial explanation for
the districts, explaining that "the goal of incumbent
protection was itself realized by the deliberate segre-
gation of voters on the basis of race." Id. at 85a.
Applying strict scrutiny, the court found that none
of the three districts was narrowly tailored to achieve
a compelling state interest. The court stated that
"[i]t is not obvious to this court that the State justifi-
ably feared potential liability under 2 and 5 of
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the Voting Rights Act if it failed to protect District
18 and set aside three new districts * * * for minority
Congressmen." App., infra, 89a-90a. Nevertheless,
the court found that "fort his and other reasons, the
legislature created the districts," and "[according
to Shaw, this is permissible if the districts are nar-
rowly tailored to comply with Voting Rights Act con-
cerns." Id. at 90a.
The court held that "[b]ecause a Shaw claim em-
braces the district's appearance as well as its racial
construction, narrow tailoring must take both these
elements into account." App., infra, 91a. Accord-
ingly, the court held that "to be narrowly tailored, a
district must have the least possible amount of irreg-
ularity in shape, making allowances for traditional
districting criteria." Ibid. Since the State could have
constructed alternative majority-minority districts
that were much more geographically compact than
Districts 18, 29, and 30, the court concluded that
those districts were not narrowly tailored to further
the State's interest in complying with the Voting
Rights Act. Id. at 92a-93a. The court rejected the
contention that the State's interest in protecting in-
cumbents was relevant to the narrow tailoring in-
quiry, reasoning that the argument "implicitly
equat[ed] incumbent protection with a compelling
state interest." Id. at 91a.
4. On September 2, 1994, the court entered an
order permitting the 1994 elections to be held under
the existing redistricting plan, but directing the State
to prepare a new plan by March 15, 1995. App.,
infra, 105a-106a. On September 20, 1994, the court
entered an order amending the September 2 order,
nunc pro tune, so that it enjoined the use of the
redistricting plan for the 1996 elections. Id. at 107a-
108a.
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THE QUESTION PRESENTED IS SUBSTANTIAL
We have urged. this Court to note probable juris-
diction in United States v. Hays, No. 94-558, because
it presents important issues left undecided by this
Court's decision in Shaw v. Reno, 113 S. Ct. 2816
(1993). One issue not raised in Hays, however, is
the proper standard for deciding whether a chal-
lenged district satisfies the narrow tailoring require-
ment of strict scrutiny. This case raises that im-
portant issue. The district court held that when a
State has a compelling interest in creating a majority-
minority district in order to comply with the Voting
Rights Act, the narrow tailoring requirement is satis-
fied only when the State draws the most compact
majority-minority district possible in light of tradi-
tional districting interests. The court further held
that protecting incumbents is not a traditional dis-
tricting interest that the State may properly consider
in this connection.
Those holdings are incorrect. In pursuing its com-
pelling interest in drawing a majority-minority dis-
trict, a State may often decide to vindicate that in-
terest while also protecting its incumbents rather
`than to draw the more compact majority-minority
district that would be possible if incumbency protec-
tion were not a consideration. If the district court's
view that such districts are unconstitutional were
accepted, it would significantly deter voluntary com-
pliance with the Voting Rights Act. Full briefing
and argument on that issue are therefore warranted.
1. As we have, argued, in our jurisdictional state-
ment in Hays, a State has a compelling interest in
drawing a majority-minority district when it reason-
ably believes that its failure to do so would expose
it to liability under the Voting Rights Act. That
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standard was satisfied here. The evidence established
that voting in Dallas is racially polarized and that
it is possible to create a reasonably compact district
in which blacks would have an opportunity to elect a
candidate of their choice. State Exh. 14; Pl. Exh.
29A. Similarly, the evidence established that voting
in Harris County is racially polarized and that it
is possible to create one reasonably compact district
in which blacks would have an opportunity to elect
the candidate of their choice or one reasonably com-
pact district in which Hispanics would have an oppor-
tunity to elect the candidate of their choice. State
Exhs. 12A, 12B, 14. The State could therefore rea-
sonably conclude that Section 2 of the Voting Rights
Act required it to draw districts that would provide
blacks in Dallas and blacks and Hispanics in Harris
County an opportunity to elect the candidates of their
choice. See Thornburg v. Gingles, 478 U.S. 30, 50-51
(1986) .
The district court did not find that the State lacked
a reasonable basis for concluding that its failure to
create such districts would violate Section 2. Rather,
it held that the particular districts drawn by the
State were not narrowly tailored to serve the State's
compelling interest in complying with Section 2. We
challenge that holding on this appeal.
2. In Shaw, this Court held that a plan is not nar-
rowly tailored if it goes beyond what is reasonably
necessary to avoid a violation of the Voting Rights
Act. 113 S. Ct. at 2831. The Court did not fully
elaborate, however, on the meaning of that standard.
The district court in this case held that the standard
requires a district to be as compact as possible, mak-
ing allowance for other traditional districting inter-
ests. The court further held that protecting incum-
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bents is not the kind of traditional redistricting
interest that the State may take into account. Be-
"cause the State could have drawn substantially more
compact majority-minority districts and because the
State failed to draw such districts as a result of its
desire to protect incumbents, the court held that the
three districts at issue here were not narrowly tail-
ored. App., infra, 89a-93a. That analysis is seri-
ously flawed for several reasons.
First, a State. may legitimately seek to protect
incumbents in redistricting and may permissibly con-
clude that furthering that interest is more important
to it than drawing compact districts. This Court's
decision in White v. Weiser, 412 U.S. 783, 793-797
(1973), is controlling on that point. In that case, this
Court held that a lower court had erred in imposing
a redistricting plan as a remedy for a one person,
one vote violation that jettisoned the State's incum-
bency protection policy in order to create compact
districts. The Court explained that because redis-
tricting is primarily a political task, a State is per-
mitted to choose between giving greater weight to
incumbency protection or to the creation of compact
districts. Ibid. That principle applies here. In pur-
suing its compelling interest in complying with the
Voting Rights Act, Texas may constitutionally decide
that protecting incumbents is more important to it
than drawing compact districts. See also Gaffney
v. Cummings, 412 U.S. 735, 753 (1973) (State plan
that creates highly irregular districts and splits po-
litical subdivisions in order to allocate seats to major
political parties in proportion to their statewide po-
litical strength does not violate Equal Protection
Clause); Bum v. Richardson, 384 U.S. 73, 89 n.16
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(1966) (State plan that is designed to avoid con-
tests between incumbents is constitutional ) 
Second, as a practical matter, many jurisdictions
may be unwilling to meet their obligations under the
Voting Rights Act voluntarily if they must sacrifice
their policy of protecting incumbent representatives
to do so. The district court's narrow tailoring stand-
ard is therefore "at odds with this Court's and Con-
gress' consistent emphasis on `the value of voluntary
efforts to further the objectives of the law.'" Wy-
gant v. Jackson Bd. of Educ., 476 U.S. 267, 290
(1986) (O'Connor, J., concurring). It also conflicts
with this Court's longstanding view that remedies for
racial discrimination may properly take into account
"the practicalities of the situation." Davis v. Board
Of Sch. Comm'rs, 402 U.S. 33, 37 (1971).
Finally, the district court's narrow tailoring re-
quirement finds no support in either Shaw's holding
or Shaw's rationale. This Court held in Shaw.. that
highly irregular districts that can be explained only
as an effort to segregate voters on the basis of race
trigger strict scrutiny; it did not hold that such
districts are per se unconstitutional. By holding that
a State that has a compelling interest requiring it to
draw majority-minority districts must draw such dis-
tricts as compactly as possible in order to satisfy the
narrow tailoring requirement, the district court has,
however, effectively held that all highly irregular
majority-minority districts that segregate voters on
the basis of race are per se unconstitutional. This
holding incorrectly ignores Shaw's insistence that an
irregular majority-minority district can be legitimate
if supported by a sufficiently compelling justification.
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Nor is the district court's narrow tailoring re-
quirement supported by Shaw's rationale. A district
that is so highly irregular in shape that it can be
understood only as an effort to segregate voters by
`race is subject to strict scrutiny under Shaw because
the boundaries of the district appear to rest on the
stereotype that all members of a minority group
think and vote alike. 113 S. Ct. at 2827. A State
that has demonstrated a compelling interest in draw-
ing a majority-minority district in order to comply
with Section 2 of the `Voting Rights Act, however,
has shown that it is not acting on the basis of such a
stereotype but upon evidence that the relevant minor-
ity group actually votes cohesively and that the ma-
jority usually votes as a bloc against the minority's
preferred candidates. Gingles, 478 U.S. at 51 (pre-
conditions for establishing a Section 2 claim are
proof that the minority group is politically cohesive
and that the majority usually votes as a bloc to
defeat the minority's preferred candidates ) ; Shaw,
113 S. Ct. at 283-0 (distinguishing between an as-
sumption that there is bloc voting and proof that bloc
voting exists ). At that point, a State should have
considerable flexibility in deciding how best to fur-
ther its compelling interest.
  For those reasons, a State with a compelling in-
terest in drawing a majority-minority district in or-
der to comply with Section 2 may properly decide
to do so in a way that protects incumbents at the
expense of compact districts. Such a decision does
not conflict with the narrow tailoring requirement
set forth in Shaw.
3. The consequences of applying the district court's
narrow tailoring standard in this case are particu-
larly troubling. The district court found that in
order to protect incumbents, district boundaries
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throughout the State frequently "divided counties,
cities, neighborhoods, and regions." App., infra, 68a.
Thus, at least two districts in Texas that are over-
whelmingly white in composition are as unusual-
looking as the districts at issue here. Lawson J.S.
4-5. More important, what emerges from the district
court's findings is that the State did whatever it took
to protect its incumbents in the redistricting process.
App., infra, 68a. If relatively compact districts would
protect incumbents, such districts were drawn. If
substantial departures from compactness were needed
to protect incumbents, that was done as well. And if
extreme departures from compactness were required,
extreme departures were approved.
A State that has systematically given greater
weight to incumbency protection than to compactness
in districting decisions should not be precluded from
following that same course when it decides how to
further its compelling interest in complying with the
Voting Rights Act. It would seriously distort the
purposes of the Equal Protection Clause to hold that
the only time that the State may not depart from
compactness is when it wishes to further a compelling
interest in avoiding the dilution of minority voting
strength.
The district court's holding on narrow tailoring in
this case conflicts with the decision in Shaw v. Hunt,
No. 92-202-CIV-5-BR (E.D.N.C. Aug. 22, 1994),
appeal pending, No. 94-923. There, the district court
held that a plan is not narrowly tailored if it "creates
more majority-minority districts than [are] reason-
ably necessary to comply with the Act," or if "the
majority-minority districts it creates contain sub-
stantially larger concentrations of minority voters
than [are] reasonably necessary to give minority
voters a realistic opportunity to elect representatives
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16
of their choice in those districts." Slip op. 76. The
court also held that narrow tailoring requires a State
to "employ rational districting principles that ensure
fair and effective representation to all citizens." Id.
at 87. The court expressly rejected the approach of
the district court in this case, however, stating that
"we cannot agree that a race-based redistricting plan
imposes an unacceptable burden upon third parties
simply because it deviates from traditional notions of
geographical compactness, contiguity, and respect for
the integrity of political subdivisions * * * to a
greater degree than a federal court may think was
necessary to accomplish the state's compelling pur-
pose." Id. at 84. That approach, the court concluded,
results "in undue interference by the federal judi-
ciary in matters that have long been thought to be
the primary province of the state legislatures." Id.
at 93-94. Probable jurisdiction should be noted to
resolve this conflict and to provide the lower courts
needed guidance on this important issue.
4. Private appellants and the State argue with
considerable force. in their jurisdictional statements
that the districts at issue here should not have been
subjected to strict scrutiny. Under Shaw, strict scru-
tiny applies when the shape of a district is "so ir-
rational on its face that it can be understood only
as an effort to segregate voters into separate voting
districts because of their race." 113 S. Ct. at 2832.
The district court found that incumbency protection
played an important role in the final shape of Dis-
tricts 18, 29, and 30. That finding, in the context
of the other factual circumstances of this case, raises
the question whether the shape of those districts can,
in fact, be understood only as the result of an effort
to segregate voters on the basis of race within the
meaning of Shaw. The question whether Shaw re-
---------------------------------------- Page Break ----------------------------------------
17
quires strict scrutiny when race and incumbency
protection considerations both contribute to a dis-
trict's irregular shape is an important and substan-
tial one and is not presented in any other post-Shaw
case. The Court should therefore note probable juris-
diction in order to decide the questions presented by
private appellants and the State concerning whether
strict  scrutiny should have been employed in this case.
This case can, however, be decided without resolv-
ing that issue. The State here had a compelling
interest in creating three majority-minority districts,
and the districts at issue were narrowly tailored to
further that compelling interest. They are there-
fore constitutional under this Court's decision in
Shaw regardless of whether strict scrutiny applies.
See United States v. Paradise, 480 U.S. 149, 166-
167 (1987) (plurality opinion) (declining to decide
whether court-ordered race-conscious relief was sub-
ject to strict scrutiny since the relief ordered satisfied
such scrutiny).
CONCLUSION
The Court should note probable jurisdiction.
Respectfully submitted.
DREW S. DAYS, III
Solicitor General
DEVAL L. PATRICK
Assistant Attorney General
PAUL BENDER
Deputy Solicitor General
IRVING L. GORNSTEIN
Assistant to the Solicitor General
STEVEN H. ROSENBAUM
MARK L GROSS
Attorneys
DECEMBER 1994
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APPENDIX A
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
    HOUSTON DIVISION
C.A. No. H-94-0277
AL VERA, ET AL., PLAINTIFFS
v.
ANN RICHARDS, ET AL., DEFENDANTS
v.
REV. WILLIAM LAWSON, ET AL.,
    DEFENDANT-INTERVENORS
v.
UNITED STATES OF AMERICA,
    DEFENDANT-INTERVENOR
LEAGUE OF UNITED LATIN AMERICAN CITIZENS
    (LULAC) OF TEXAS, ET AL.,
     DEFENDANT-INTERVENORS
[Filed Aug. 17, 1994]
OPINION
Before JONES, Circuit Judge, HITTNER and
HARMON, District Judges.
EDITH H. JONES, Circuit Judge:
(1a)
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2a
I. INTRODUCTION
The Voting Rights Act of 1965 at one blow demol-
ished the obvious devices that southern states had
used to disenfranchise African-American voters for
decades. The Act marked the full maturity in Amer-
ican political life of the Founders' idea that "all men
are created equal" and the Rev. Martin Luther King's
hope that his children would be judged by the con-
tent of their character, not the color of their skin.
The meaning of equality-as also enshrined in the
Fourteenth Amendment's guarantee of "equal protec-
tion of the laws" -is the subject of this lawsuit.
It is no longer disputed that the Fourteenth and
Fifteenth Amendments embody a right to ballot box
equality among American citizens of different races
or ethnic backgrounds. See, e.g., Rodgers v. Lodge,
458 U.S. 613 (1982) ; Baker v. Carr, 369 U.S. 186
(1962); Gomillion v. Light foot, 364 U.S. 339 (1960).
The Fourteenth Amendment also prohibits govern-
ment from invidiously classifying persons because of
their race. Repeatedly and in the strongest terms,
the Supreme Court has condemned intentional racial
discrimination by state agents or bodies. Where
official discrimination is found to exist, the burden
is on the governmental body to justify it. by no less
than a compelling governmental interest.
One year ago, the Supreme Court reaffirmed that
intentional racial discrimination is offensive to the
Equal Protection Clause when it occurs as part of
legislative redistricting. See Shaw v. Reno, 113 S. Ct.
2816 (1993). In Shaw, the Court held that "redis-
tricting legislation [is unconstitutional if it] is so
extremely irregular on its face that it rationally can
be viewed only as an effort to segregate the races for
---------------------------------------- Page Break ----------------------------------------
3a
purposes of voting, without regard for traditional
districting principles and without sufficiently compel-
ling justification." Id. at 2824.
In 1991, the State of Texas deliberately redrew its
Congressional boundary lines following the 1990
census with nearly exact knowledge of the racial
makeup of every inhabited block of land in the state.
This insight, worthy of Orwell's Big Brother, was
attainable because computer technology, made avail-
able since the last decennial census, superimposed at
a touch of the keyboard block-by-block racial census
statistics upon the detailed local maps vital to the
redistricting process. Not only did the state know the
precise location of African-American, Hispanic, and
Anglo populations, but it repeatedly segregated those
populations by race to further the prospects of in-
cumbent officeholders or to create "majority-minority"
Congressional districts. The result of the Legisla-
ture's efforts is House Bill 1 ("HB1" ), a crazy-quilt
of districts that more closely resembles a Modigliani
painting than the work of public-spirited representa-
tives. 1.
The challenged plan (HB1 ) was passed in the sec-
ond called session of the 72nd Texas Legislature and
signed into law by the Governor on August 29, 1991.
See Plaintiff Exh. 1. On November 18, 1991, the
Texas Congressional Redistricting Plan received  5
preclearance from the Attorney General. 2.   See United
___________________(footnotes)
                                                      
1 HB1 will alternatively be referred to as Plan C657, the
plan number assigned by the State's redistricting software
to the plan embodied in HB1.
2 As Texas is covered by 5 of the Voting Rights Act, the
Legislature must either (1) have any proposed plan pre-
cleared by the Department of Justice, or (2) seek a judgment
---------------------------------------- Page Break ----------------------------------------
4a
States Exh. 1007; Stip. 37.  Notwithstanding the pre-
clearance, the Attorney General expressed funda-
mental reservations about the redistricting plan:
        
While we are preclearing this plan under Section
        5, the extraordinarily convoluted nature of some
        districts compels me to disclaim any implication
        that the proposed plan is otherwise lawful or
        constitutional.
United States Exh. 1007 at 2.
The plaintiffs in this case are six Texas voters who
reside in Congressional Districts 18, 25, 29, and 30.
In a pretrial stipulation, they alleged that 24 of the
state's 30 Congressional are the product of
racial gerrymandering or intentional racial discrim-
ination. 3.
The question before this court is whether any of 
the 24 challenged Congressional Districts, many of
whose boundaries were clearly affected by racial con-
siderations, can be sufficiently explained by legitimate
redistricting criteria other than race.  See Shaw, 113
S. Ct. at 2824.  For reasons that follow, we conclude
that Congressional Districts 18, 29, and 30 as pres-
ently drawn are not so explainable.  They were con-
ceived for the purpose of providing "safe" seats in
Congress for two African-American and an Hispanic
___________________(footnotes)
from the United States District Court for the District of
Columbia declaring that the plan "does not have the purpose
and will not have the effect of denying or abridging the right
to vote on account of race or color . . ."  Voting Rights Act
of 1965, 42 U.S.C. 1973c.
3 The plaintiffs' post-trial submissions seem to suggest
that they now challenge all 30 districts, but we reject this
belated attempt to broaden the scope of the case.
---------------------------------------- Page Break ----------------------------------------
5a
representatives. They were scientifically designed to
muster a minimum percentage of the favored minor-
ity or ethnic group; minority numbers are virtually
all that mattered in the shape of those districts.
Those districts consequently bear the odious imprint
of racial apartheid, and districts that intermesh with
them are necessarily racially tainted.
Other challenged Texas Congressional Districts" are
disfigured 4.  less to favor or disadvantage one race or
ethnic group than to promote the reelection of incum-
bents; they are not unconstitutionally segregated.
We do not hold that the state may only draw Con-
gressional boundaries with a blind eye toward race,
a goal which would be impossible, nor that it is alto-
gether prohibited from creating majority-minority
districts. But when the State redraws the boundaries
of Districts 18, 29, and 30 and contiguous districts,
it can and must exhibit respect for neighborhoods,
communities, and political subdivision lines. As the
Supreme Court put it, appearances do matter. In
appearance and in reality, these three districts were
racially gerrymandered.
Racial gerrymandering is unconstitutional, but it
is also morally wrong, inconsistent with our founding
tradition and Martin Luther King's vision. The color
of a person's skin or his or her ethnic identity is the
least meaningful way in which to understand that
person. To elevate racial classification as a basis for
political representation inevitably defeats the prin-
ciple of equality because it causes all of society to
become more not less, race-conscious. Justice William
O. Douglas put this point well:
___________________(footnotes)
4 To call these districts "configured" in any sense that im-
plies order would be a misnomer.
---------------------------------------- Page Break ----------------------------------------
6a
When racial or religious lines are drawn by the
State, the multiracial, multireligious communi-
ties that our Constitution seeks to weld together
as one become separatist; antagonisms that re-
late to race or, to religion rather than to political
issues are generated; communities seek not the
best representative but the best racial or religious
partisan. Since that system is at war with the
democratic ideal, it should find no footing here.
Wright v. Rockefeller, 376 U.S. 52,67 (1964) (Doug-
las, J., dissenting) (quoted in Shaw, 113 S. Ct. at
2827) .
   
II. PROCEDURAL HISTORY
The plaintiffs are six registered voters who reside
in Congressional Districts 18, 25, and 29 (located in
whole or in part in Harris County), and in District
30 (most of which., is located in Dallas County). See
Complaint at 4 7. Plaintiffs filed their Original
Complaint for Permanent Injunction and Declaratory
Judgment and Motion for Preliminary Injunction on
January 26, 1994 against the Governor, the Lieuten-
ant Governor, the Attorney General, and the Secretary
of State as well as the Speaker of the Texas House
of Representatives.
The complaint alleged that the 1991 Congressional
Redistricting Plan for the State of Texas "represents
an" unconstitutional effort to segregate the races for
purposes of voting: (1) without regard for traditional
districting principles including compactness, contigu-
ousness [sic], consistency with existing political, eco-
nomic, societal, governmental or jurisdictional bound-
---------------------------------------- Page Break ----------------------------------------
7a
aries; (2) without sufficiently compelling justification;
and (3) without `narrow tailoring' as required by the
United States Constitution." Complaint at 2 1. 5.
Candidate qualifying for the March 8, 1994 pri-
mary elections in Texas closed on January 3, 1994
and early voting began on February 16. On March
2, 1994, the court entered an order denying the
plaintiffs' motion for a preliminary injunction and
their motion for consolidation and expedited hearing
and set trial for June 28, 1994. Also on March 2,
1994, the court granted the motion of the United
`States to participate as amicus curiae in the case. On
March 14, 1994, the state defendants in this action
filed their answer to the complaint.
On May 5, 1994, the court granted the motion to
intervene of six African-American registered voters
represented by the NAACP Legal Defense and Edu-
cational Fund, Inc. ("Lawson Intervenors" ). On
May 20, 1994, the court granted the motion of the
United States to intervene. A week later, on May 27,
1994, the court entered an order granting interven-
tion to both The League of United Latin American
Citizens ("LULAC") and seven. Hispanic registered
voter members of the organization.
On June 13, 1994, the United States filed a motion
to bifurcate trial; the court denied the motion on
June 17, 1994. On June 16, 1994, the court conducted
the pretrial conference. At the pretrial conference,
___________________(footnotes)
5  In addition to their claim under the Equal Protection
Clause of the Fourteenth Amendment, the plaintiffs alleged
that the 1991 Congressional Redistricting Plan violated the
Fifth and Fifteenth Amendments, as well as the Voting
Rights Act of 1965, as amended, 42 U.S.C.  1973. Complaint
at 14  39.
---------------------------------------- Page Break ----------------------------------------
8a
the court set the pretrial schedule and directed the
plaintiffs to file a statement narrowing the districts
to which they asserted challenges and eliminating
any claims not supported by substantial evidence or
`case law. In response, on June 16, 1994, the plain-
tiffs filed a statement dismissing their  2  6. and state
constitutional claims and identifying six districts
that they did not challenge under the Fourteenth
Amendment. In a subsequent filing, the plaintiffs dis-
missed their Fifteenth Amendment claims. 7.  Trial was
held June 27-30 and concluded on July 1, 1994.
To expedite matters, this court limited the parties'
trial time while permitting them to submit virtually
unlimited additional documentary and deposition evi-
dence. The parties liberally accepted this offer. 8.  The
___________________(footnotes)
6 Voting Rights Act of 1965, 42 U.S.C. 1973.
7 As delineated in their June 16th specification, the plain-
tiffs challenge twenty districts as unconstitutional racial
gerrymanders under the framework of Shaw v. Reno, 113
S.Ct. 2816 (1993). The targeted districts are Districts 3-9,
12-1S, 18-19, 21-26, and 28-30. Four additional districts-
Districts 1, 2, 14, and M were challenged under Hays v.
Louisiana (Hays I), 839 F. Supp. 1188 {W.D. La. 1993). The
Supreme Court vacated the judgment in Hays I and remanded
the case to the district court for further consideration in
light of the Louisiana Legislature's repeal of Act 42 and
creation of a new districting scheme in Act L See Louisiana
v. Hays, 62 U. S.L.W. 3859 (June 27, 1994). After a two-day
trial, the district court once again struck down the Louisiana
redistricting plan as an unconstitutional racial gerrymander.
See Hays v. Louisiana (Hays II), No. 92-1522 (W.D. La.
1994). The court adopted by reference  its opinion in Hays I.
See id. at 2. This court finds it unnecessary to determine
whether, as the parties argue, Hays  I goes beyond  Shaw.
8 The parties, however, chose not to use all of their allotted
trial time.
---------------------------------------- Page Break ----------------------------------------
9a
court has reviewed all of the evidence brought before
US. The record references below highlight and sum-
marize the testimony.
III. EVIDENTIARY BACKGROUND : 
A. Texas Demography Related to Redistricting
Congressional redistricting in Texas operated
against a backdrop of important demographic changes
throughout the state. Population growth from 1980
to 1990 was largely attributable to significant popu-
lation growth among Hispanics and African-Ameri-
cans. Of particular interest is the enormous increase
in Hispanic population state-wide. Thus, what fol-
lows are the Census figures chronicling minority-led
population growth in Texas during the 1980's.
According to the 1980 Census, Texas' total popula-
tion was 14,229,191, of whom 2,985,824 (20.98%. )
were Hispanic, 1,692,542 (11.09% ) were non-His-
panic African-American, and 9,350,297 (65.7%)
were Anglo. See Stip. 7. By the 1990 Census, Texas'
total population had increased to 16,986,510, of
whom 4,339,905 (22.55%) were Hispanic, 1,976,360
(11.63% ) were non-Hispanic African-American, and
.10,291,680 (60.5%) were Anglo. The increase in
population from 1980 to 1990 (2,757,319 persons) en-
titled Texas to three additional seats in the United
States House of Representatives, increasing the size
of the delegation from 27 to. 30. See Stip. 8. Based
on the 1990 Census, the. ideal size of a Texas Con-
gressional district is 566,217. See Stip. 17.
Under the. 1980 Census, Texas' voting-age popula-
tion was 9,923,085, of whom 1,756,971 (17.71%)
were Hispanic, 1,095,836 (11.04%) were non-His-
panic African-American, and 6,932,894 (69.87%)
---------------------------------------- Page Break ----------------------------------------
10a
were Anglo. See Stip. 9. By 1990, Texas' voting-age
population had increased to 12,150,671, of whom
2,719,586 (22.38%) were Hispanic, 1,336,688
(11.0%) were non-Hispanic African-American, and
7,828,352 (64.43 %) were Anglo. See Stip. 10. Tak-
ing citizenship into account.. alters these percentages.
Under 1990 figures, the total citizen voting age popu-
lation is only 11,313,641, of whom 2,085,857 (18.4%)
were Hispanic, and 1,315,860 (11.6%) were non-
Hispanic African-American. See State Exh. 14, Ap-
pendix 1.
Even a cursary review of the foregoing Census
`data reveals the significant growth experienced by
minority communities, and, in particular, the explo-
sive population growth among Hispanics in Texas.
The Hispanic population in the state grew from 1980
to 1990 by 1,354,081 persons, or 45.4%; the African-
American population in the state grew from 1980 to
`1990 by 283,818 persons, or 16.8%; and the Anglo
population in the state grew from 1980 to 1990 by
.941,383 persons, or 10.1%. The growth in Hispanic
population accounted for a remarkable 49.1% of the
increase in Texas' total population from 1980 to
1990. See Stip. 11.
The four counties with the largest growth in popu-
lation from 1980 to 1990 in number of persons gained
are Harris, Tarrant, Dallas, and Bexar Counties. As
noted below, the growth in the Hispanic and African-
American population in these counties accounted for
a significant proportion of the increase in population
in each of these counties:
a. The total population of Harris County in-
creased by 408,652 persons from 1980 to
1990. The Hispanic population in the county
---------------------------------------- Page Break ----------------------------------------
11a
increased by 275,858 persons, accounting for
67.5% of the growth in total population in
the county. The African-American popula-
tion increased by 58,674 persons, accounting
for 14.4% of the county's growth. See Stip.
12. According to the 1990 Census, there are
644,935 Hispanic persons in Harris County,
of whom 405,735 are of voting age. See Stip.
13. Furthermore, there are 527,964 African-
American persons in the county, of whom
359,248 are of voting age. See Stip. 14.
b. The total population of Tarrant County in-
creased by 309,223 persons from 1980 to
1990. The Hispanic population in Tarrant
County increased by 72,247 persons, account-
ing for 23.4% of the growth in total popula-
tion in the county. The African-American
population in Tarrant County increased by
37,765 persons, accounting for 12.2% of the
county's growth. See Stip. 12.
c. The total population of Dallas County in-
creased by 296,420 persons from 1980 to
1990. The Hispanic population in the county
increased by 161,069 persons, accounting for
54 % of the growth in the total population of
the county. The African-American popula-
tion increased by 76,343 persons, accounting
for 25.8 % of the county's growth. See Stip.
12. In Dallas County, there are 362,130
African-American persons of whom 243,918
are of voting age. See Stip. 15.
d. The total population of Bexar County in-
creased by 196,594 persons from 1980 to
1990. The Hispanic population in Bexar
---------------------------------------- Page Break ----------------------------------------
12a
   County increased by 128,269 persons, ac-
  counting for 65.2 % of the growth in the total
  population of the county. The African-Amer-
  ican population in Bexar County increased by
  13,326 persons, accounting for 6.8% of the
  county's growth. See Stip. 12.
Significant increases in Hispanic population oc-
curred between 1980 and 1990 in several other
counties:
a. The Hispanic population of Cameron County
increased by 51,341 persons between 1980
and 1990.
b. The Hispanic population of Hidalgo County
increased by 96,760 persons between 1980
and 1990.
c. The Hispanic population of Webb County in-
creased by 34,227 persons between 1980 and
1990.
See Stip. 16.
B. Pertinent History Related to Redistricting in
Texas
Texas did not redistrict Congressional Districts at
all between 1933 and 1957. See United States Exh.
"1071 at 7. Following the 1960 Census, the state "re-
districted" by creating a new at-large Congressional
seat. See State Exh. 23,  6. This approach to re-
districting allowed all incumbents' existing districts
to remain intact and meant. that the at-large candi-
date had to campaign across and represent the en-
tire state. also in'" the 1960's Texas created the now
infamous District 6-often known as  ''Tiger''
---------------------------------------- Page Break ----------------------------------------
13a
Teague's district-which ran from Fort Bend County
through rural east Texas into the southern ends of
both Tarrant and Dallas Counties. See State Exh,
41. 
The 1971 round, of Congressional redistricting was
notable at least in part because of the great lengths
to which the state legislature went to solicit the views
of incumbent congressmen. The Senate Congressional
Redistricting Subcommittee actually flew to Wash-
ington to meet with the Texas delegation as a group
and on an individual basis. 9.  See State Exh. 23,  8.
In the 1980's, the Texas Legislature managed to put
together a plan despite two novel facts-the first
Republican governor elected in Texas since Recon-
struction and the applicability of 5 of the Voting
"Rights Act to Texas Congressional redistricting. See
___________________(footnotes)
9 Ted Lyon, a former member of the Texas House and
Senate involved in the 1980 and 1990 redistricting battles,
asserted that "[C]ompactness is not a `traditional districting
principle' in Texas. For the most part, the only traditional
districting principles that have ever operated here are that
incumbents are protected and each party grabs as much as it
`can. There is no reason why the State should now have to
draw compact majority-minority districts when it has shown
no interest over the years in drawing compact majority-
white districts." Lawson Exh. 14,  17; see id. at  12 ("Nei-
ther pretty districts nor compact districts are a priority in
Texas, and they have not been since well before I was in-
volved in districting, if ever.").
At a minimum, however, a comparison of Plan C657 and
Plan C001, the 1980's Congressional districting plan, strongly
suggests that compactness as measured by an "eyeball" ap-
proach was much less important in Plan C657. This is espe-
cially true, of the major urban counties, namely Dallas and
Harris. Cf. Plaintiff Exh. 28A (map of Plan C001) with
Plaintiff Exh. 34B (map of Plan C657).
---------------------------------------- Page Break ----------------------------------------
14a
United States Exh. 1071 at 14; Plaintiff Exh. 28A
(Map of 1980's Plan C001).
C. The 1991 Congressional Redistricting Process
1. General Background
The Texas Constitution requires the Texas Legis-
lature to redraw Congressional Districts after each
Decennial Census. See Tex. Const. art. III, 26. The
Texas Legislature is a bicameral body consisting of
the Senate and the House of Representatives. See Stip.
4. In 1991, the Texas Senate had 31 members, elected
from single member districts. See Stip. 5. Of the 31
members of the 1991 Senate, 22 were Democrats and
nine were Republicans, two were African-American,
five were Hispanic and 24 were Anglo. All of the
African-American and Hispanic members were Dem-
ocrats. See State Exh. 1. The Texas House of Rep-
resentatives had 150 members, also elected from
single-member districts. See Stip. 6. Of the 150
members of the 1991 Texas House, 93 were Demo-
crats and 57 were Republicans, 13 were African-
Americans, 20 were Hispanic, and 117 were Anglo.
As in the Senate, all of the African-American and
Hispanic House members were Democrats. See State
Exh. 2.
The following committees and subcommittees of
the Texas Legislature were involved in the task of
redistricting in 1990 and 1991: the Senate Select
Committee on Legislative Redistricting, chaired by
Senator Bob Glasgow; the House Committee on Re-
districting, chaired by Representative Tom Uher; the
Senate Committee of the Whole on Redistricting,
chaired by Senator Chet Brooks, which had two sub-
committees-the Subcommittee on Congressional Dis-
---------------------------------------- Page Break ----------------------------------------
15a
tricts, chaired by then-State Senator Eddie Bernice
Johnson, and the Subcommittee on Legislative Re-
districting chaired by Senator Bob G1asgow; 10.  and
the Senate Committee of the Whole, chaired by Sen-
ator Chet Brooks.
The Senate Select Committee on Legislative Re-
districting and the House Redistricting Committee
held joint regional outreach hearings throughout the
state. Specifically, the committee heard and received
testimony from individuals and organizations con-
cerned about redistricting in the following cities:
Austin (February 28, 1990) ; Lubbock (March 16,
1990) ; Amarillo (March 17, 1990) ; Corpus Christi
(April 6, 1990); El Paso (May 18, 1990); Midland/
Odessa (May 19, 1990) ; Houston (June 1, 1990);
Beaumont (June 22, 1990); Tyler (June 23, 1990);
Fort Worth (July 13, 1990) ; Dallas (July 14, 1990);
Laredo (July 27, 1990) ; Edinburg/Harlingen (July
28, 1990) ; San Antonio (August 25, 1990); and
Austin (September 28, 1990). In 1991, the Senate
Committee of the Whole on Redistricting held its own
public outreach hearings on a more limited scale in
Houston (April 5, 1991), Brownsville (April 26,
1991), and San Antonio (May 1, 1991). See United
States Exh. 1086.
The transcripts and/or summaries of these numer-
ous regional hearings are voluminous. What role
these hearings ultimately played in Congressional re-
districting is difficult to ascertain. At least one Texas
___________________(footnotes)
10 The staff for the Senate Subcommittee on Legislative
Redistricting included Carl Reynolds, Chris Sharman, Shan-
non Noble, and Laura McElroy. See Stip. 27. Sharman was
the subcommittee's technician and map drawer. See 6/29/94
TR. at 3-156-58.
---------------------------------------- Page Break ----------------------------------------
16a
House member, `Representative Kent Grusendorf, tes-
tified that the regional outreach hearings-often ill-
attended by legislators-''essentially had no effect
on the outcome of the redistricting process." 6/27/94
TR. at 96, Grusendorf further observed: "At the
time I think I thought it was serious, but in hind-
sight I think for the most part it was show." Id.
Nevertheless, the state relied strongly on citizen par-
ticipation in these hearings when it justified its plan
to the United States Department of Justice.
The Texas Legislative Council advised the Texas
Legislature on legal issues of concern in drafting
Congressional redistricting legislation. See Dep. of
Archer at 7. Jeff Archer, lead lawyer for the Council
on redistricting, made presentations to committee
members at the regional public outreach hearings on
various legal issues to be considered in the redistrict-
ing process. See id. at 87-88. In addition, the Coun-
cil published a series on redistricting-dubbed the
"gray books"-that together served as a more com-
prehensive statement of state and federal law ap-
plicable to redistricting. See Plaintiff Exhs. 13A, 13B,
13C. The Legislative Council also developed and had
jurisdiction over REDAPPL (a/k/a "Red Apple"),
which was the primary software used in drawing
maps during the Congressional redistricting process.
See Dep. of Archer at 30.
The challenged redistricting plan (HB1 ) generated
litigation before it was even passed. On May 24,
1991, Republican plaintiffs in Terrazas v. Slagle,
821 F. Supp. 1162 ( W.D. Tex. 1993), brought an
action under the Fourteenth and Fifteenth Amend-
ments to the Constitution and the Voting Rights Act
against various officials of the State of Texas and
---------------------------------------- Page Break ----------------------------------------
17a
the Texas Democratic Party. In their First Amended
Original Complaint, filed after the adoption of HB1
the plaintiffs in Terrazas challenged the 1991 Texas
Congressional Redistricting Plan as unconstitutional
and violative of the Voting Rights Act and alleged
that it
sacrifices the rights of racial and political minor-
ities to enhance the reelection chances of Anglo
Democrat incumbents by fragmenting and con-
centrating the population centers of Hispanics
and Republicans, diminishing the Likelihood that
candidates of their choice can be elected from
within" their communities.
United States Exh. 1005. The court in Terrazas
ruled that the 1991 Texas Congressional Redistrict
ing Plan did not dilute the voting rights of racial,
ethnic, or political minorities in violation of the
Constitution or the Voting Rights Act. See Terrazas
v. Slagle, 821 F. Supp. 1162 (W.D. Tex. 1993).
The implementation of the challenged plan did
increase the minority composition of the Texas Con-
gressional Delegation. During the consideration of
redistricting by the Texas Legislature in 1991, the
Texas Congressional Delegation had 27 members, of
whom 18 were Democrats, nine were Republicans,
one was African-American, four were Hispanic, and
22 were Anglo. See Stips. 46-471 As a result of
the 1990. Census, the Texas Congressional. Delegation
increased to 30 members. See Stip. 48. Of the 30
members of the Texas Congressional Delegation
elected in 1992 after the 1991 redistricting-20
Democrats and ten Republicans-two are African-
American, five are Hispanic, and 23 are Anglo. See
Stips. 49-50.
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18a
2. Voting Rights Act Considerations
The Legislature embarked upon Congressional re-
districting against the legal backdrop of the Voting
Rights Act. As described supra, the Texas Legisla-
tive Council through the "gray books" attempted to
summarize Voting Rights Act concerns for the Texas
Legislature. 11.  Further, Jeff Archer, the Council's
lead lawyer on redistricting, frequently testified be-
fore the Legislature's committees on the Voting
Rights Act requirements. For instance, Archer told
the Senate Committee of the Whole on Redistricting
that "mere lack of proportional representation is not
enough" to establish a violation of the Voting Rights
Act, but is "strong evidence." Plaintiff Exh. 16 at
10. 
The Legislature also heard from concerned citi-
zens and organizations about the Voting Rights Act
considerations relevant to Congressional redistrict-
ing. For example, George Korbel, director of litiga-
tion for Texas Rural Legal Aid and former regional
director of the Mexican-American Legal Defense
___________________(footnotes)
11 In reference to a statement made in the "gray books'' that
" the Gingles standard does not appear to require a majority
district to be drawn if the district would be extremely elon-
gated or otherwise bizarre in shape," Jeff Archer testified
that "those terms are to some extent attempts to explain to
a  person who's not familiar with this [redistricting] what
compactness might mean." He noted that the statement was
made in the context of a plaintiff in a redistricting case under
section 2. The best the voters alleging the violation could
do was to show that the legislators could have connected
South Texas and Houston, and then gone over to Dallas, in
his view, the State is probably not under any obligation and
is not violating the law by drawing some other forma of dis-
tricts. See Dep. of Archer at 192-193.
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19a
Fund, testified before the Senate Committee of the
Whole on Redistricting that "unless there is [sic.]
at least two additional Hispanic Congressional dis-
tricts and one additional Black Congressional dis-
trict, . . . the reapportionment of the Congress is not
going to pass the Department of Justice." United
States Exh. 1086 (4/5/91).
Once the redistricting legislation had passed, the
Voting Rights Act considerations in HB1 were set
forth in a September 1991 attachment to the State's
5 submission entitled Narrative of Voting Rights
Act Considerations in Affected Districts prepared by
the Texas Congressional Redistricting Staff. See
Plaintiff Exh. 4C. As the document sets forth in
its introduction, the Narrative functions to "give
an overview of the efforts made to address Voting
Rights Act concerns." Id. at 1.
The Narrative begins by noting the legislative
agreement that the three new Congressional seats
apportioned to Texas
should be configured in such a way as to allow
members of racial, ethnic, and language minor-
ities to elect Congressional representatives. Ac-,
cordingly, the three new districts include a pre-
dominantly black district drawn in the Dallas
County area and predominantly Hispanic dis-
tricts in the Harris County area and in the
South Texas region. In addition to creating the
three new minority districts, the proposed Con-
gressional redistricting plan increases the black
voting strength of the current District 18 (Har-
ris County) by increasing the population to as-
sure that the black community may continue to
elect a candidate of its choice.
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20a
Id.  After making these initial observations, the Nar-
rative analyzes the" three new minority districts as
well as District 18 in greater detail.
The Texas Legislature agreed that a new "safe"
African-American district should be drawn in Dallas
county. 12.  See id. at 2. The African-American com-
munity in Dallas County insisted on a 50% total
African-American population for the district "which
the community felt was necessary to assure its abil-
ity to elect its own Congressional representative
without having to form coalitions with other minor-
ity groups." Id. Meeting the threshold 507. figure
meant that more compact alternative proposals for
District 30 had to be rejected. 13.  See id.
Texas legislators were aware that the failure to
draw an African-American majority district in Har-
ris County in 1991 might be interpreted as retro-
gression under Section 5 of the Voting Rights Act.
See 6/30/94 TR. at 4-31; United States Exh. 1047.
Therefore, in order to keep District 18 as a "safe"
African-American district, "additional black popu-
lation was taken from adjacent districts thereby in-
___________________(footnotes)
12 The agreement on Dallas County traversed party lines.
Republican House member Kent Grusendorf testified that
fairness and the Voting Rights Act dictated that African-
American voters should have a district in Dallas in which
they could elect a candidate of choice. See Dep. of Grusendorf
at 47.
13 Creation of a "safe" African-American district in Dallas
County obviously impacted the other districts in Dallas and
Tarrant Counties. The Narrative briefly discusses why the
splitting of the African-American community in Tarrant
County between Districts 12 and 24 does not amount to
dilution of that minority community. See id. at 3.
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21a
creasing the total African-American population to
50.9% and decreasing the total Hispanic population
to 15.3%. 14.  Plaintiff Exh. 4C at 5. The remaining
Hispanic population was placed in District 29-the
new "safe" Hispanic district-consisting of a 60.6%
Hispanic population and a 10.2% African-American
population. See id. The Narrative concludes that
the changes in District 18 and the configuration of
District 29 "result in the maximization of minority
voting strength for this geographical area." Id.
In the heavily Hispanic South Texas area, the
Legislature faced no major problems concerning mi-
nority voting strength or adjustments of population
totals. See id. District 28-the new "safe" His-
panic district in South Texas-was drawn with the
constant input of the minority leadership in Bexar
County and the Rio Grande Valley. See id. The
location of District 28 in the northern portion of
South Texas was determined in part by the historical
north-south configuration of, Congressional Districts
15 and 27. This was the result of attempts to rem-
edy a January 29, 1982 Section 5 objection which
___________________(footnotes)
14 Harris County senator Rodney Ellis described the value
of majority-minority districts such as District 18:
Majority [-minority] districts are important to provide
opportunities for minorities to elect candidates of their
choice Democracy cannot function at its best when
whole groups are excluded or separated from the political
process. Majority-minority districts offer people whose
philosophies have not always been represented a chance
to get into the game. The districts do not ensure that
minorities will win seats. They ensure that their view-
points will be represented. Often these viewpoints are
better represented by a minority, but not always.
Lawson, Exh. 7,  4.
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22a
expressed concern that the original east-west con-
figuration of Districts 15 and 27 resulted in packing
of the Hispanic population. See United States Exh.
1065 at 9; 6/29/94 TR. at 3-169.
  
a. Racial Polarization
In configuring Congressional District 30 in Dallas
County, the African-American community sought
50%. total African-American population as the min-
imum necessary to assure that a candidate of choice
would be elected. The 50% figure was deemed sig-
nificant because "[t] here is little evidence of coali-
tion voting between blacks and Hispanics in Dallas
County" and reaching the threshold 50% would ob-
viate any need to form coalitions. Plaintiff Exh.
4C at 3.
In Harris County, University of Houston political
scientist Dr. Richard Murray observed that
the political alliance that had been forged be-
tween blacks and Hispanics in the 1960's began
to break down. Open electoral conflicts became
more common, Relations were especially strained
in 1989 when, in a contest for an open at-large
seat on Houston's city council, and [sic] African
American, Sheila Jackson Lee, upset the favored
Hispanic, former city controller Leonel Castillo.
Hispanics returned the favor in 1991 when
Gracie Guzman Saenz unseated a "black incum-
bent in another at-large election. And in a hard-
fought mayoral race in 1991, African Americans
rallied behind black Texas Representative Syl-
vester Turner, given [sic] him 97% of their
votes in a runoff. Hispanics supported the Anglo
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23a
winner, Bob Lanier, by a "nearly three to one
margin.
Lawson Exh. 26 at 15. This breakdown of past coali-
tions prompted Hispanic strategists to argue that
Hispanics and African-Americans should not be
combined in a new Harris County Congressional dis-
trict. See id. As Houston City Councilman Ben
Reyes testified at an outreach hearing held in Hous-
ton, combining minority groups in nearly equal num-
bers in a new Harris County district would be the
"worst scenario" because "they will vote for mem-
bers of their own ethnic group, making it more likely
that a non-minority candidate will win." 15.  Plain-
tiff Exh. 15H at 18.
In general, some racial or ethnic polarization oc-
curs in majority-minority districts in Texas. See
Plaintiff Exh. 36 at 23-27. The analysis of Dr.
Allan J. Lichtman, an expert for the State of Texas,
concluded that Angles usually bloc-voted against His-
panic candidates in the majority-Hispanic districts.
In each of four categories, a mean of 21% or fewer
Anglo voters voted for Hispanic candidates. See
State Exh. 14 at 21 (Table 5). For the African-
American majority districts, Dr. Lichtman similarly
concluded that Anglos usually bloc voted against
African-American candidates. In each of four cate-
gories, a mean of 34% or fewer Anglo voters voted
___________________(footnotes)
15 The testimony of Harris County Senator Rodney Ellis is
consistent with the view that in Harris County African-
Americans and Hispanics may not form political coalitions.
See Lawson Exh. 7,  19 (" [The candidate of choice of the
African-American community will often, not be the candidate
of choice of the Hispanic community.")
---------------------------------------- Page Break ----------------------------------------
24a
for African-American candidates. In all categories
but the legislative (which included only one election
for each district), a mean of 25% or fewer Anglo
voters voted for African-American candidates. See
id. at 22. Dr. Ronald Weber, an expert for the
plaintiffs, conceded some racial or ethnic polariza-
tion, but concluded that it is "not legally or politi-
cally consequential." Plaintiff Exh. 36 at 27.
b. History of Discrimination
Texas has a long, well-documented history of dis-
crimination that has touched upon the rights of
African-Americans and Hispanics to register, to vote,
or to participate otherwise in the electoral process.
Devices such as the poll tax, an all-white primary
system, and restrictive voter registration time pe-
riods are an unfortunate part of this State's minor-
ity voting rights history. See United States Exh.
1065 at 3; State Exh. 17 at 6. The history of official
discrimination in the Texas election process-stretch-
ing back to Reconstruction-led to the inclusion of
the State as a covered jurisdiction under Section 5 in
the 1975 amendments to the Voting Rights Act.
Since Texas became a covered jurisdiction, the De-
partment of Justice has frequently interposed objec-
tions against the State and its subdivisions. See
United States Exh. 1095.
3. Incumbents' Interests
As has historically been the case, Congressional
incumbents were actively involved in the redistrict-
ing process. The Texas Democratic Congressional
Delegation formed a redistricting committee which
began work in late 1989 or early 1990. See Lawson
Exh, 3,  4. Congressman Ron Coleman, a Demo-
---------------------------------------- Page Break ----------------------------------------
25a
crat from El Paso and head of the Redistricting
Committee, asked Democratic incumbents what areas
they wanted to represent; to the extent their prefer-
ences overlapped, Coleman mediated between incum-
bents. See id. The committee's "overriding objec-
tive," however, was incumbency protection. Id. at
10. 
The Delegation played a significant role in deter-
mining the configuration of the Congressional dis-
tricts, developing their own alternative plans and
presenting those plans to state legislators. See Law-
son Exh. 3,  9. As Congressman Coleman observed:
`We drew our own plans and presented them to the
Legislators, and various members of the Delegation
met with [L]egislators in Austin to discuss the in-
cumbents' needs and preferences. The Delegation was
definitely a force in the process." Id.
Not surprisingly, Republican incumbents were ac-
tive in the redistricting process as well. For instance,
Congressman Joe Barton urged the joint redistricting
committees to protect as many incumbent congress-
men as possible. See Plaintiff Exh. 15H at 25. In
short, as a general rule, incumbents sought to influ-
ence the Legislature to draw districts that would
maximize their chances for reelection. Furthermore,
members of the Legislature openly acknowledged the
role of incumbents on the redistricting process. See
United States Exh 1092 (Senate Committee of the
Whole, transcript dated 8/24/91, "at 17) (statement
of Senator Eddie Bernice Johnson: The incumbents
"have practically drawn their own districts. Not
practically, they have."); Plaintiff Exh. 23 at 21
(statement of Representative Uher: `Well, I think
that not just a congressman but a large majority of
                 
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26a
the Congressional delegation have endorsed the basic
plan that we started with, and that's the reason that
we're still adhering to that basic plan, is because of
a majority of support of the Congressional delegation
and not just necessarily one individual congressman's
support.") .
Incumbency protection would by definition at
minimum require that incumbents not be paired
against each other. Plan C657 reflects a successful
effort to avoid this result. See Stip. 52. As shown
by the various maps making up State Exh. 9B, in-
cumbent residences repeatedly fall just along district
lines. Congressman Lamar Smith's residence lies in
an inlet in Bexar County in the last voter tabulation
district ("VTD") before his Congressional District
21 ends at the northern boundary of Congressman
Henry B. Gonzales' District 20. 16.  Congressman Gon-
zales' residence in turn lies in the last VTD before his
district ends at the southern boundary for District
21. In Dallas County, Congressman Frost's residence
lies in a small indentation jutting into a part of Dis-
trict 30, and Congressman Bryant's residence lies
just barely on the other side of a dividing line be-
tween District 5 and District 30. Finally, in Harris
County, small indentations permit Congressman Jack
Fields' residence to remain in District 8 and Con-
gressman Andrews' residence to remain in District 25.
At least as measured by 1992 election results, the
incumbents experienced great success in redistrict-
ing to assure incumbency protection. Each incumbent
member of Congress-except Albert Bustamante, an
Hispanic Democrat who represented District 23-
was reelected to Congress in 1992. Bustamante was
___________________(footnotes)
16 For our purposes, a VTD is the functional  equivalent Of
a voting precinct.
---------------------------------------- Page Break ----------------------------------------
27a
defeated in the 1992 General Election by Henry
Bonilla, an Hispanic Republican. See Stip. 51. Ad-
ditional specific instances of incumbent interests will
be detailed in infra in the analysis of particular Con-
gressional Districts.
4. Use of Racial Data
As with incumbency interests, particular instances
in which racial data were used in redistricting are
hereafter detailed in discussing individual Congres-
sional Districts and their shapes. However, some
general observations about racial/ethnic information
widely available to legislators are appropriate.
Redistricting data were available to all members
of the Legislature and their staffs as well as to any
groups and individuals sponsored by members of the
Legislature. See Plaintiff Exh. 13D at 1. The pri-
mary software used for map drawing in Congres-
sional redistricting-REDAPPL-was readily avail-
able on work stations in the redistricting offices of
the Texas Legislative Council. See id.
The feature of REDAPPL of most interest is the
system's ability to provide racial and ethnic data at
both the VTD and block level. REDAPPL software
allowed the operator to work at the VTD level and
call up racial/ethnic information in addition to other
types of information such as population, voting age
population, incumbent location, and street names.
See 6/29/94 TR. at 173. Election contest informa-
tion was available at the VTD level, see id., but
REDAPPL did not allow the operator to work with
multiple elections simultaneously on a screen. 17.  In-
___________________(footnotes)
17 The REDAPPL software did not itself contain electoral
databases, but election information was available through
the State's mainframe computer.
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28a
dices of partisanship such as the NCEC Index, pre-
pared at a national level for the use of Democrats,
involved multiple elections, but they could not be
accessed on a REDAPPL screen. See id. at 175.
The critical feature of REDAPPL is that it al-
lowed the operator' to "split" a VTD and work on a
block-by-block level. See id. at 176. Racial/ethnic
breakdown was available on a block level on
REDAPPL. See id. at 177. By contrast, no election
contest information was available at the block level
on the REDAPPL software. l8.  See id. In sum,
REDAPPL allowed the user to work with racial/
ethnic data at even the block level; election informa-
tion was simply unavailable at that level through
REDAPPL.
If the Legislature intended to allocate voters on
the basis of race, REDAPPL certainly provided a
readily available, efficient means of doing so. In
fact, because the software constantly displayed racial
and ethnic data on the screen anytime an operator
used the system, a would-be map drawer would affirm-
atively have to ignore the data. See 6/30/94 TR.
at 81. But as Chris Sharman, the principal computer
technician/map drawer involved in Congressional
redistricting, testified:
The problem is when you draw on this computer,
it tells you the population data, racial data.
Every time you make a move, it tabulates right
there on the screen. You can't ignore it.
Id.
___________________(footnotes)
18 Election  information at  the block level was available
if at all-only through the personal knowledge of Congres-
sional incumbents and their staff. 6/29/94 TR. at 177-78.
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29a
5. Congressional District 30
Describing the boundaries of Congressional Dis-
trict 30 is no easy task. Even the State of Texas
has difficulty analyzing the contours of this extraordi-
narily oddly-configured, sprawling district. See Ap-
pendix (Map of District 30). Dan Weiser, an expert
employed by the United States, prepared a map iso-
lating Congressional District 30 and breaking it
down into a "core" and no less than seven segmented
portions. See State Exh. 33. Even under the State's
analysis, the "core" of District 30 accounts for only
50% of the district's voting age population. See id.
The "core" of the district includes what is gener-
ally known as South Dallas, Fair Park, and portions
of South Oak Cliff and Pleasant Grove in southeast
Dallas. See United States Exh. 1070 at 9 (declara-
tion of Dr. Paul Waddell). The district then moves
northeast from its core and splits into a northern
and a western extremity. See id. at 10. The western
extremity proceeds to incorporate much of West
Dallas before it branches off to the north and south.
The southern portion gathers the "older core" of
Grand Prairie, while the northern portion moves
"through mostly undeveloped land between Irving
and Arlington, and into the DFW Airport." Id. at
11. The northern extremity includes a portion of
the district to the northeast of the Central Express-
way characterized as "particularly complex" by the
State's land use expert, Dr. Paul Waddell. Id. at 12.
As even a cursory glance at the map of District
30 in isolation reveals, the district can really only
be described here in the most general terms as its
meanderings are too complicated and frequent to
detail. See State Exh. 33. "Thus, the remainder of
---------------------------------------- Page Break ----------------------------------------
30a
the discussion of Congressional District 30 in this
portion of the opinion will focus exclusively on the
intent of the Texas Legislature in drawing the con-
voluted boundaries of District 30.
According to the Narrative of Voting Rights Act
Considerations in Affected Districts, an attachment
to the State's 5 submission, the Texas Legislature
agreed that a "safe" African-American Congres-
sional District would be drawn in Dallas County. 19.
See Plaintiff Exh. 4C at 1-2. The African-American
community insisted upon a 50% total African-Amer-
ican population in order to assure a "safe" African-
American district in Dallas County. See id. at 2.
The community succeeded, as Congressional District
30 configured under Plan C657 had a total African-
American population of 50.070 and a total Hispanic
population of 17.170. See id.
The trial testimony of District 30 Congresswoman
Eddie Bernice Johnson in Terrazas Y. Slagle a pre-
vious challenge to C657 under the Constitution and
Voting Rights Act-is consistent with the plainly
stated conclusion in the Narrative that the Texas
Legislature intended to create a safe African-Ameri-
can district in Dallas County. In response to a ques-
tion about whether a dominant goal existed in re-
___________________(footnotes)
19 Newspaper articles appearing statewide before and dur-
ing the redistricting process confirm the view that the Legis-
lature had early on agreed that Dallas County would get a
new minority-namely African-American-district. See, e.g.,
United States Exh. 1012 ("Redistricting Mostly Pluses for
Democrats", Austin American-Statesman, 4/21/91); United
States Exh. 1017 ("Minority District Foreseen for County",
Dallas Morning News, 12/27/90); United States Exh. 1038
("Minority Seat May Spell Peril for 3 Congressmen", Dallas
Times Herald, 5/5/91).
---------------------------------------- Page Break ----------------------------------------
31a
districting Congressional Districts in Dallas County,
Johnson-who at the time of redistricting chaired
the Senate Subcommittee on Congressional Districts
and was a representative of Dallas County in the
Texas Senate-replied:
Yes. I had made a commitment to that Black
community, that they would have a safe district,
as had been mandated and expected for a num-
ber of years, and I did not intend to go home
without that.
Plaintiff Exh. 8B at 231.
In explaining the boundaries of the district, Con-
gresswoman Johnson testified that the district was
drawn this way as a result of two competing tensions
-namely that the district was intended to be a "safe"
African-American district and the African-American
population in Dallas County had over time dispersed
from its previous "core" location. The following ex-
change is particularly informative:
  
Q: When you say they deteriorated, what do
you mean in that respect, Mrs. Johnson?
  A: Well, the population had moved-started
to move out; there were lot of boarded up
houses. The whole core of that area was moving
out. There had been a deterioration of about 40
to 45 to 50 percent in certain areas of voters in
a 10 year period. In addition to that, there were
a large number of persons there who were felons,
who could not vote. So, though they were over
18, it substantially deteriorated their voting
strength. We then attempted to locate where that
population shifted to. And in attempting to trail
that-to trace that population, we could see that
---------------------------------------- Page Break ----------------------------------------
32a
it was moving outer and around. It was going
into the Grand Prairie area and into the Pleasant
Grave area. And then there were pockets of per-
sons who had lived here, and then this was
moved-
Q: Who lived in the Black core district?
A: -who lived in the core district, and also
in the north end of Dallas County, into Collin
County. Those were performing voters who ex-
pressed a desire to be in the minority district . . . . 
Q: Well, to the extent then that we see
fingers of the . . . district going off in the north
-north Dallas County, and even into southern
Collin County, I suppose, we are talking about
these are Black migration areas that you were
attempting to bring into the district; is that
correct ?
A: That is correct.
Id. at 233-35. In sum, Congresswoman Johnson testi-
fied in Terrazas that the shape of Congressional Dis-
trict 30-including the various "finger''-like exten-
sions that are common northeast of the Central Ex-
pressway-can be understood as a conscious effort to
pick up African-American voters who had dispersed
from the core area. 20.
___________________(footnotes)
20 It was wide] y acknowledged that then-Senator Johnson
had enormous authority in drawing the boundaries of District
30 as she saw fit:
[A]t some point the lieutenant governor made it clear
that he wanted Senator Johnson to draw her district and
that the Senate, as far as the lieutenant governor was
concerned, was going to support what she wanted to do
in Dallas. And at that point it came down to drawing
her district, or the district that she would run in, and
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33a
When asked about the influence of incumbent Con-
gressmen Martin Frost and John Bryant on the shape
of District 30, Congresswoman Johnson testified that
her sole focus in drawing the district was on looking
out for African-American voters:
  
Q: All right. Now, was anything done in the
course of the creation of this map, Mrs. Johnson,
that you could tell us about, to aid Congressman
Bryant or Congressman Frost? Or did this map
just happen this way?
  A: I got beat up so many times because I
wouldn't do anything but look out for Black
voters.
Id. at 247. Johnson-the principal architect of. Dis-
trict 30-proceeded to testify that in drawing the
district she was able to pick and choose the "perform-
ing" African-American voters she wanted to include,
leaving the "nonperforming" African-American voters
for Bryant and Frost. 21.    See id. at 248.
Representative Fred Blair's testimony at trial in
Terrazas is consistent with Congresswoman Johnson's
view expressed in that same case that the shape of
___________________(footnotes)
working with accommodating Bryant on the east side and
Frost more or less on the west side to-to accomplish
what they felt that they needed to do.
Dep. of Reynolds at 23.
21 Congressmen Frost and Bryant had a significant part of
their old districts-24 and 5 respectively-removed to draw
the safe African-American seat. As Chris Sharman noted:
"[A] good portion of the core of District 30 was in Congress-
man Bryant's district prior, and the other portion was in
Congressman Frost's prior to redistricting . . . . " June 29,
1994 TR. at 3-187.
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34a
the district can be explained as an effort to locate and
select "performing" African-American voters in order
to guarantee the African-American community a safe
African-American seat. Blair-a Texas House mem-
ber from Dallas-observed that District 30
was crafted in a manner that we sought to pick
up those precincts, those communities, those areas
that we thought were stable areas that would
present an opportunity to elect an African-
American. . . . [1] n looking at developing a Con-
gressional Plan, we wanted to find those areas
that we thought were stable areas. Homeowners
were very important to us. We wanted to make
sure we included a significant number of those
within a district because just to lump in African-
Americans and say we have an African-American
district that may have a number of apartments
where there is a lot of movement going on, we
thought we had to be very sure, very careful, in
drawing lines so that we could create a district
that we thought was winnable with a 50 percent.
Plaintiff Exh. 8D at 108-09. Furthermore, his testi-
mony directly linked this effort to find "stable areas"
with the irregular shape of the district. See id. at
109.
The testimony submitted in this racial gerry-
mandering case is at first glance starkly at odds with
the explanation for the district's severely contorted
boundaries offered in Terrazas, which was of course
not a racial gerrymandering case. The most promi-
nent example is the testimony offered by Congress-
woman Johnson in this case.
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35a
Unlike Terrazas, where she did not acknowledge
that Congressmen Frost and Bryant had a role in
determining the district's boundaries, Congresswoman
Johnson testified for purposes of this case that Dis-
trict 30 did not include some portions of the area
encompassed by her senate district because the in-
cumbent congressman in District 5-John Bryant-
wanted the area: "[Five] wanted voters that they
had previously represented, just as 24, just as 6, just
as 5, just as everybody that had a stake in it. Every-
body wanted as much of what they had previously
represented as possible on both sides of the political
spectrum." Dep. of Johnson at 82. Johnson further
testified that a more compact African-American ma-
jority district could have been drawn in the Dallas
area if she did not have to address the concerns of
incumbents. 22.  See Dep. of Johnson at 130-32, 142.
Other testimony in this case emphasized the role
of incumbents in the shaping of District 30's bizarre
boundaries. Ted Lyon, a former member of the Texas
House and Senate involved in Congressional redistrict-
ing in 1980 and again in 1990, described in general
terms the active role of incumbents in drawing Dis-
trict 30:
In focusing on the incumbent congressmen in the
Dallas area, it became clear almost immediately
that there would be a fight between Congressmen
Frost and Bryant, on the one hand, and Senator
Eddie Bernice Johnson, on the other, over the
___________________(footnotes)
22 Congresswoman Johnson in fact drew a much more com-
pact African-American majority district in Dallas in her
Plan C500. See Plaintiff Exh. 29. That plan drew much
opposition from incumbents and was quickly abandoned. See
Part III. E. infra.
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36a
African-American voters who had previously re-
sided in Districts 3 [sic] and 5. Frost and
Bryant were not concerned about the race of
these voters. They just wanted to hold onto
enough Democrats to assure re-election. Senator
Johnson was trying to take both minority and
Democratic voters from what had previously been
Districts 24 and 5 in order to construct a major-
ity-black district that would satisfy the Voting
Rights Act. Conflict arose, of course, because
Democratic populations and African-American
populations are often the same. The redistricting
process became a no holds barred political fight,
and fangs were out.
Lawson Exh, 14,  8.
Lyon also testified about the specific impacts of
incumbency protection on the contours of the district.
For instance, he attributed the "irregular" shape of
District 30 in Oak Cliff and Grand Prairie to fighting
between Frost and Johnson eventually settled by es-
sentially splitting the areas between Districts 24 and
30. See id. at  9. Lyon also attributed in part some
of the irregularity in the district's eastern shape to
incumbency protection-namely keeping Congressman
Bryant's East Dallas neighborhood in District 5. 23.  See
id. at 11.
___________________(footnotes)
23 Ted Lyon was certainly not the sole source of additional
support for the proposition that incumbency protection played
a role in the boundaries of District 30. Representative Gru-
sendorf testified that the odd configuration of District 30 was
the result of protecting Frost and Bryant. Dep. of Grusen-
dorf at 41. And Carl Reynolds, a staff member of the Senate
Subcommittee on Legislative Redistricting, testified that there
was a conflict over the Dallas area because
Frost and Bryant split Dallas County and we were forc-
ing another district right down in-between the two of
---------------------------------------- Page Break ----------------------------------------
37a
Apparently, Democratic incumbents in Dallas
County were quite interested in keeping African-
American voters in their newly configured districts.
Congresswoman Johnson testified that Congressman
Frost was "looking for voters [in the urban areas of
Dallas county] that were going to vote in the Demo-
cratic Primary, and clearly he was more likely to be
sure of it if they were black." Dep. of Johnson at
129-130, Quite telling is an August 28, 1991 letter
written by then-Senator Johnson to John Dunne, then
the head of the Civil Rights Division at the Depart-
ment of Justice, in which the Senator requested a
review of proposed Districts 12 and 24 and their
potentially dilutive effect on the minority community
in Tarrant County. See Plaintiff Exh. 6E6. In the
first paragraph of this letter, Senator Johnson ex-
plains why African-American voters were so attrac-
tive to incumbents fighting over district boundaries:
For primary elections, approximately 97% of the
total votes cast by Blacks in the Dallas/Fort
Worth metroplex area are cast in the Democratic
primary. Because of the consistency of this vot-
ing pattern, Democratic incumbents generally
seek to include as many Blacks as possible into
their respective districts. Throughout the course
of the Congressional redistricting process, the
lines were continuously reconfigured to assist in
protecting the Democratic incumbents in the
___________________(footnotes)
them and pushing them outward, and so then naturally
there were neighborhoods that one or the other had rep-
resented and there were people that-you know, there
were people that they had represented and that they
wanted to continue to represent and they had to work out
the lines to do that.
Dep. of Reynolds at 24-25.
---------------------------------------- Page Break ----------------------------------------
38a
Dallas/Fort Worth metroplex area by spreading
the Black population to increase the Democratic
party index in those areas.
Id. In other words, incumbent protection in Dallas
County involved the allocation of African-American
voters among the districts.
Again in contrast to her prior Terrazas testimony,
Congresswoman Johnson described in her deposition
in this case a variety of nonracial factors that went
into the drawing of District 30's boundaries. For in-
stance, she testified that the district mappers "made
an effort to put communities of interest together in
this district. We made an effort to identify voters
that would support the same kinds of major issues in
the same manner, notwithstanding their color." Dep.
of Johnson at 32. Johnson further asserted that she
and her staff considered the result of certain votes in
deciding whom to include in District 30:
We looked at a couple of referenda votes for
the Dallas area rapid transit system. We also
looked at a bond election vote for the Dallas in-
dependent school district trying to determine
where there might be more communities of in-
terest, where there would be support that would
go beyond the color of the candidate.
Dep. of Johnson at 144.
Other testimony ostensibly supports Congresswoman
Johnson's suggestion that "communities of inter-
est" were put together in District 30. In a report
dated June 24, 1994, Dr. Paul Geisel, an expert for
the state, proclaims that District 30 represents a com-
munity of interest that shares "one economy, one
transportation system, one media/communications
---------------------------------------- Page Break ----------------------------------------
39a
system and one higher educational system." State
Exh. 18 at 7.
Dr. Paul Waddell, the United States' land use ex-
pert, in a report prepared June 21, 1994, attempts
to explain the boundaries of District 30 in nonracial
land use terms. First, most of the "arms and fingers"
of Congressional District 30 follow both natural and
commercial land use boundaries, including industrial
belts, retail areas, the `Trinity River, and freeway cor-
ridors. See United States Exh. 1070 at 8. Second,
District 30's extremities encompass within their
boundaries little single-family land use, but "clusters
of multi-family land use." Id. Third, the extremities
of the district incorporate "substantial land use areas
that are office, industrial, retail, or airport land use
areas, even when these areas do not clearly serve as
a bridge to other residential areas." Id. Fourth, the
district boundaries do not, upon close analysis, divide
single family residential neighborhoods, but in fact
encompass "multi-family areas and avoid established
single family neighborhoods." Id.
Neither Dr. Waddell nor Dr. Geisel suggested that
the Legislature had these particular "communities of
interest" in mind when drawing the boundaries of
District 30. While Fred Blair's testimony in `Terrazas
suggests that the map drawers preferred to include
home-dwellers over apartment-dwellers, an assertion
at odds with Dr. Waddell's conclusions, the record is
otherwise void of support for any land use thesis. In
sum, both reports undoubtedly accurately describe the
district, but are more properly seen as post hoc de-
scriptions of the boundaries.
---------------------------------------- Page Break ----------------------------------------
40a
6. Congressional Districts 18 and 29
According to the Narrative of Voting Rights Act
Considerations in Affected Districts, the Legislature
sought to create a "safe" Hispanic seat in the new
Harris County Congressional District 29 as well as
increase African-American voting strength in Dis-
trict 18 in order to assure that the African-American
community could continue to elect a "candidate of its
choice." Plaintiff Exh. 4C at 1. Prior to redistricting
in 1991, District 18 was underpopulated by 116,549
people and was made up of 35.1% total African-
American population and 42.2 %  total Hispanic popu-
lation. 24.  See id. at 5. To "remedy" this situation,
additional African-American population was taken
from adjacent districts, thereby increasing the total
"African-American population to 50.9%. The remain-
ing Hispanic population was shifted over to the new
Hispanic District thereby decreasing the total His-
panic population in District 18 to 15.3%. See id. For
its part, District 29 consists of 60.6 % total Hispanic
and 10.2% total African-American population. See
id. 
An appreciation for the precision with which this
segregation of Hispanics and African-Americans in
Harris County was carried out may not be had with-
out a detailed look at the map of District 18 based on
African-American population distribution by Census
block and the map of District 29 based on Hispanic
population distribution by Census block. See Plaintiff
___________________(footnotes)
24 That District 18-a safe African-American district-
ended up having an Hispanic plurality in total population
is not surprising given the explosive growth of the Hispanic
community in Harris County over the 1980's. See part II.A.
supra.
---------------------------------------- Page Break ----------------------------------------
41a
Exh. 55 and 53. The detail allowed by these maps
highlights in District 18, for example, the "many nar-
row corridors, wings, or fingers that reach out to
enclose black voters, while excluding Hispanic resi-
dents." Richard H. Pildes & Richard G. Niemi, Ex-
pressive Harms, "Bizarre Districts," and Voting
Rights : Evaluating Election-District Appearances
After Shaw v. Reno, 92 Mich. L. Rev. 483, 556
(1993) (hereinafter, "Pildes & Niemi"). District
29's border is similarly characterized by fingers reach-
ing out to enclose Hispanics. In fact, these districts
are so finely "crafted" that one cannot visualize their
exact boundaries without looking at a map at least
three feet square. 25.
The geographic dispersion of the various minority
communities within Harris County is definitely an
obstacle in drawing a majority-minority district each
for African-Americans and Hispanics. As Dr. Ronald
Weber, the main expert for the plaintiffs, testified at
trial " [T]he Hispanic community is dispersed in two
quadrants about 10:00 or 11:00 o'clock on [Plaintiff
Exh. 53] . . . and about 5:00 o'clock" while the
African-American community has three centers' of
concentration, "one as [sic] approximately 10:00
o'clock [on Plaintiff Exh. 55], which is to the west of
the Hispanic concentration, one at about 1:00 o'clock,
which is another African-American concentration,
and then finally at about 6:00 and 7:00 o'clock."
6/28/94 TR. at 263. This dispersion helps account
for the fact that District 29 cuts through the center
of Houston to join the two Hispanic quadrants and
___________________(footnotes)
25 The maps in the appendix to the opinion roughly outline
the districts' severely convoluted boundaries. See Appendix
(Maps of Districts 18 and 29).
---------------------------------------- Page Break ----------------------------------------
42a
that District 18 snakes around the city to capture the
various African-American concentrations. See id. at
264; Appendix (Maps of Districts 18 and 29); see
also Plaintiff Exhs. 34H8, 34339 (small maps).
In the earliest stages of the Congressional redis-
tricting process, state Democratic and Republican
leaders rallied behind the idea of creating a new
Hispanic safe seat in Harris County while preserving
the safe African-American seat in District 18. 26.  Also
early on in the redistricting process, Texas House
member Roman Martinez, an Hispanic Democrat
from Houston, announced a plan for drawing the new
Hispanic district while maintaining majority-minority
District 18 and preserving the "Democratic nature"
of Congressional District 25. See Plaintiff Exh. 9.
Representative Martinez-one of two Hispanic mem-
bers of the Texas House from Harris County-would
play a major role in the drawing of District 29, as
would another Congressional aspirant, then-State
Senator Gene Green. 27.  In the press release announc-
ing his plan, Martinez  promised that
___________________(footnotes)
26 The  chairman of the Texas Democratic Party, Bob Slagle,
told the House Redistricting Committee that an Hispanic
Congressional district could be drawn in Harris County
while keeping District 18 an African-American district and
leaving District 25 with a "significant" minority population
of about 40%. United States Exh. 1058 ("Hispanic Dis-
trict Feasible, House Committee Hears", Houston. Post,
4/2/91). The chairman of the Texas Republican Party, Fred
Meyer, expressed his support for efforts to draw the Hispanic
district in Harris County, calling plans for such a district
" 'possible, feasible, responsible and fair.' " United States
Exh. 1061 ("Hispanic Congressional District for Harris
County Proposed", Dallas  Morning News, 3/24/91).
27 Both Senator Green and Representative Martinez had
Congressional aspirations and, consequently, wanted the new
---------------------------------------- Page Break ----------------------------------------
43a
what, Houston's Hispanic community has long
worked for-its own Congressional district-will
be accomplished. My hope is that it will be ac-
complished through the Legislative process as we
present this plan to both the House and the Sen-
ate in the State Legislature. But if this district
as we envision it is not a product of the legisla-
tive process, we will enlist the help of the U.S.
Department of Justice and the courts under the
jurisdiction of the Voting Rights Act.
Id.
Representative Martinez's testimony at trial in
Terrazas v. Slagle is consistent with the analysis of-
fered in the Narrative on the creation of the two
majority-minority districts in Harris County. As the
primary architect of the lines in Harris County,
Martinez defined his goals in redistricting:
Again, the first goal was to assure no retrogres-
sion for the 18th Congressional District, insuring
that that was maintained as an African-American
district. And then, secondly, it was a very im-
portant goal as a Hispanic representative to in-
sure that we created for the first time a Con-
gressional seat for the Hispanic community to
elect the first Hispanic Congressman.
Plaintiff Exh. 8A at 134 146. These "goals" took
hold in the Legislature. For example, Carl Reynolds,
a staff member of the Senate Subcommittee on Legis-
lative Redistricting who was actively involved in Con-
___________________(footnotes)
                                                
Hispanic district to be based around their legislative districts.
See Dep. of Martinez at 13-14, 16-18. Green eventually won
the race for the District 29 seat in a bitter contest against
longtime Houston City Councilman Ben Reyes.
---------------------------------------- Page Break ----------------------------------------
 44a
gressional redistricting, observed that  [t]here was
an understanding that that new district [in Harris
County] would be, a-I think a 60 percent or more
Hispanic district." Dep. of Reynolds at 62.
At least two other factors influenced the boundary
drawing of the Harris County districts. 28.  First, to
the extent possible, Congressman Mike Andrews' dis-
trict-Congressional District 25-was to kept intact
and Democratic. See Dep. of Martinez at 21. Ed
Martin, Executive Director of the Texas Democratic
Party, testified that a suggestion by Congressman
Craig Washington that District 18 be reconfigured
based on the shape of African-American majority
Senate District 13 was unacceptable "because it would
have taken a large chunk out of District 25." 29.  Law-
son Exh. 15,  18. Congressional District 25 was not
spared in the redistricting process, however, as it
eventually lost population to District 18 in southern
Harris County thereby necessitating the additional
population from the southwest, the Baytown area,
and north of the Ship Channel. See 6/30/94 TR, at
445. 
The second factor was the desire of Senator Gene
Green to draw a Congressional district in which he
___________________(footnotes)
28  Senator Rodney Ellis, Democrat from Houston, observed
that to a great extent "District 18 was shaped by the districts
around it;' Lawson Exh. 7 at  17, in part because it was
assumed that District 18 would continue to be an African-
"American majority district and because incumbent Congress-
man Craig Washington was not active in redistricting. See
id.
29 Senator Ellis similarly testified that " [i] n the absence
of an Andrews' district, Senate District [13] could have been
the starting point for District 18, with population added to
`bring it up to the size of a Congressional district." Lawson
Exh. 7 at  18:
---------------------------------------- Page Break ----------------------------------------
45a
could run, namely one which included as much of his
Senate district as possible. See Dep. of Martinez at
22. Not surprisingly, Senator Green was not entirely
successful in influencing the map drawing. For in-
stance, an alternative to the present configuration of
District 29 would have brought District 29 around
the northeast portion of Harris County. See State
Exh. 15 at 4. This alternative included areas per-
ceived as more favorable to Senator Green. See id.
As per Representative Martinez's wishes, the down-
town links the two major quadrants of District 29 in
its final form. 30.
Senator Green's insistence on including his pri-
marily Anglo "home" precincts in District 29 had
the effect of diluting the Hispanic population percent-
age of the district. See Dep. of Martinez at 28.
Representative Martinez testified that it became
necessary to operate at the Census block level, in
order to reach the agreed upon 6170 Hispanic per-
centage. See id. In sum, the inclusion of certain
Anglo precincts in District 29 necessitated operating
at the block level-that is, necessarily splitting pre-
cincts-to find Hispanic voters to meet the target
percentage. 31.  See id.
___________________(footnotes)
30 At least one observer, Ed Martin, noted that, in drawing
Districts 18 and 29, "the only way to protect all incumbents
of both parties, draw two majority-minority districts, and
get 76 votes in the House and 21 votes in the Senate was for
one district to go through Downtown and the other to go
around it." Lawson Exh. 15,  18.
31 AS Carl Reynolds testified, once a precinct or  is
split, the redistricting software provides no election infor-
mation at the block level. See Dep. of Reynolds at 34. Un-
like election data, racial information is available at this level.
See id. at 35.
---------------------------------------- Page Break ----------------------------------------
46a
The effect of splitting dozens of VTD's to create
Districts 18 and 29 was an electoral nightmare.
Harris County estimated that it must increase its
number of precincts from 672 to 1,225 to accom-
modate the new Congressional boundaries. Polling
places, ballot forms, and the number of election
employees correspondingly multiplied. Voters were
thrust into new and unfamiliar precinct alignments,
a few with populations as low as 20 voters. 32.
7. Congressional District 28
The enormous growth in the Hispanic population
in Texas-particularly South Texas-assured that a
new Hispanic seat would be drawn in the South Texas
area. See Plaintiff Exh. 4C at 5. According to the
Narrative of Voting Rights Act Considerations in
Affected Districts, construction of the South Texas
district posed no major problems concerning minority
voting strength or adjustment of population numbers/
percentages because of the heavy Hispanic concen-
tration throughout the region. See id. at 5-6. Dis-
trict 28 as constructed runs from Bexar County
south to Starr and Zapata Counties and is 60.47.
Hispanic in total population and 8.5% African-
American. 33.
___________________(footnotes)
32  In such micro-precincts, a voter might perceive that the
secrecy of his or her ballot was jeopardized by the new pre-
cinct lines, especially if turnout was 50 % or below.
33 A 1982 objection by the Justice Department to proposed
east-west configurations for District 15 and 27 in South
Texas resulted in their present north-south configuration. See
United States Exh. 1065 at 9; 6/29/94 TR. at 3-169. This
certainly influenced-perhaps dictated-the north-south con-
figuration of District 28.
---------------------------------------- Page Break ----------------------------------------
47a
Then-Senator Frank Tejeda, Vice-Chair of the
Senate Subcommittee on Congressional Districts, was
primarily responsible for the development of the
South Texas districts generally and in particular for
the drawing of the new 28th District. See id. at 5;
LULAC Exh. 6 at 5. As now Congressman Tejeda
concedes in his affidavit submitted in this case, he
attempted to draw a district which would facilitate
his potential candidacy. See LULAC Exh. 6 at 8.
To this end Tejeda included south Bexar County
and much of east San Antonio in District 28-both
areas which he had represented in the Texas Senate.
See id.
Congressman Tejeda also testified that he and his
staff attempted to comply with the wishes of the
Texas Democratic Congressional delegation in draw-
ing districts in South Texas. See id. at 5. For ex-
ample, Congressman Kika De La Garza insisted that
Hidalgo County not be divided between districts, and
Congressman Solomon Ortiz "let it be known that he
did not want either Cameron or Nueces County split."
Id. at 6. None of these counties ended up split in the
final redistricting plan. Keeping these counties whole
meant, however, that Jim Wells County and Kleberg
County-apparently less politically powerful-would
eventually be split. See id. at 9. As for the splits in
Guadalupe County, Tejeda maintained he had no
reason to believe the cuts were made for anything
other than political reasons. 34.
___________________(footnotes)
34 while the part of Guadalupe County split into District
28 contained a combined  52.3% African-American and His-
panic population, the portion split into District 21-repre-
sented by Republican Congressman Lamar Smith-contained
only 23.4% African-American and Hispanic population. See
Plaintiff Exh. 36H at 4. Similarly, the part of Comal County
---------------------------------------- Page Break ----------------------------------------
48a
Nick Dauster worked for Senator Tejeda during
the 1991 Congressional redistricting and was the
lead Senate staff person on South Texas Congressional
redistricting. See LULAC Exh, 1 at 5. He explained
that District 28 needed additional population and
"it was suggested that we include Democratic com-
munities in Guadalupe and Comal Counties." Id. at
15. These communities were heavily minority, but 
according to Dauster-had much in common with the
portions of San Antonio in District 28. See id.
Finally, Congressman Tejeda observed that District
28 as constituted represents many communities of
interest. The district is composed primarily of low
to middle income, blue collar, working class families.
See id. at 2. Much of the district is involved in
agriculture and related industries See id. The dis-
trict also has a very large veteran population of ap-
proximately 10%. See id. at 3.
8. Other Congressional Districts
Many of the remaining districts challenged by the
plaintiffs share a troubling characteristic: counties
within the district appear to be split on racial lines.
Lubbock County is a prime example of this trait
among these districts. While the part of Lubbock
County that was split into Congressional District
13-occupied by Democrat Bill Sarpalius-contained
77.4%. African-American and Hispanic population,
the part split into Republican Larry Combest's Dis-
trict 19 contained only 19.2% African-American and
___________________(footnotes)
split into Congressional District 28 contained 62.1% African-
American and Hispanic population, but the portion put in
Smith's district was only 10.6% African-American and His-
panic population. See id.
---------------------------------------- Page Break ----------------------------------------
49a
Hispanic population. See Plaintiff Exh. 36H. Dur-
ing the Texas Senate floor debate on August 24, 1991,
the day Plan C657 was passed by the Senate, then-
Senator Eddie Bernice Johnson, Chair of the Sub-
committee on Congressional Districts, succinctly ex-
plained the split in Lubbock County:
BIVINS: But I'm referring to the 19th and
the 13th Congressional districts specifically in
pointing out that there are split counties and
specifically-
JOHNSON: Yes, I can tell you why Lubbock
is split. It splits to remove that Black commu-
nit y into a district where they can have more
impact.
United States Exh. 1092 at 21.
Midland and Ector Counties raise the same issue.
In Ector County, the part of the county split into
former Democratic Congressman Albert Bustamante's
District 23 contained 72.1% African-American and
Hispanic population, while the part in Republican
District 19 contained only 21.2% African-American
and Hispanic population. See Plaintiff Exh. 36H.
In neighboring Midland County, the part of the
county split into Congressional District 23 contained
76.5% African-American and Hispanic population;
the part split into District 19 contained less than
17% African-American and Hispanic population
(16.2% ); and the part split into Republican Lamar
Smith's District 21 contained only 10,9% African-
American and Hispanic population. See id.
In explaining the Midland County split during
floor debate on August 24, then-Senator Johnson
maintained that "the Congressional [i.e., the Con-
---------------------------------------- Page Break ----------------------------------------
50a
gressional Delegation] feel that that minority popu-
lation ought to go into that minority district and
that's where those minorities out there wanna go,
and that's the reason why they put them in there."
United States Exh. 1092 at 1 (tape 2). Johnson's
testimony in Terrains explaining the Midland County
split emphasized that the district lines were really
responding to the desire of minorities to be in Dis-
trict 23:
We made sure we had the minorities' input on
these areas. I have heard comments about some-
body in Midland, what have you. We were re-
sponding to minorities. They wanted to be cer-
tain places. They didn't always feel free, they
tell me, to even say that to anyone else, but they
felt free to tell me. And we were responsive to
them.
Plaintiff Exh. 8B at 243,
Speaking more generally, Congresswoman Johnson
testified that county splits along minority lines in
Plan C657 are not accidental. See Dep. of Johnson
at 97. These county splits-whether reflecting the
urgings of minorities or incumbents or both-occur
throughout the challenged districts:
1. Nacogdoches County, Texas: While the part
of Nacogdoches County that was split into Democrat
Charles Wilson's Congressional District 2 contained
52.5'% African-American and Hispanic population,
the part split into Democrat Jim Chapman's District
1 contained only 13.2% African-American and His-
panic population. See Plaintiff Exh. 36H.
2. Montgomery County, Texas: The part of Mont-
gomery County that was split into District 2 con-
---------------------------------------- Page Break ----------------------------------------
51a
tained 40.9% African-American and Hispanic popu-
lation, while the part split into District 8-repre-
sented by Republican Jack Fields-contained only
8.1$7. African-American and Hispanic population.
See id.
3. Wailer County, Texas: While the part of Wailer
County that was split into Democrat Greg Laughlin's
District 14 contained 56.9% African-American and
Hispanic population, the part of the county allocated
to District 8 contained only 8.6%. African-American
and Hispanic population. See id.
4. Brazos County, Texas: The part of Brazes
County that was split into Democrat John Bryant's
District 5 contained 71.7% African-American and
Hispanic population, while the part split into Con-
gressional District 8 contained only 15.3% African-
American and Hispanic population. See id.
5. Brazoria County, Terns: While the part of
Brazoria County that was split into District 14 con-
tained 32.0%. African-American and Hispanic popu-
lation, the part split into Republican Tom DeLay's
District 22 contained only 22.8%. African-American
and Hispanic population. See id.
6. Hunt County, Texas: While the part of Hunt
County split into District 1 contained 20.4% Afri-
can-American and Hispanic population, the part of
the county split into Democrat Ralph Hall's District
4 contained only 8.07. African-American and His-
panic population. See id.
7. Gregg County, Texas: The part of Gregg
County that was split into District 1 contained
32.2 % African-American and Hispanic population,
while the part split into District 4 contained only
17.8% African-American and Hispanic population.
See id:
---------------------------------------- Page Break ----------------------------------------
52a
8. Denton County, "Texas: While the part of
Denton County that was split into Bill Sarpalius'
District 13 contained 22.0% African-American and
Hispanic population, the part split into Republican
Joe "Barton's District 6 and Democrat Hall's District
4 contained only 10.0%. and 9.27. African-American
and Hispanic population respectively. See id.
9. Collin County, Texas: While the part of Collin
County that was split into Congressional District 30
contained 57.470 African-American and Hispanic
population, the part split into District 4 contained
17.2%  African-American and Hispanic population
and the part split into Republican Sam Hall's District
3 contained only 7.7 % African-American and His-
panic population. See id.
10. Smith County, Texas: The part. of Smith
County split into District 5 contained 64.070 African-
American and Hispanic population, while the part of
Smith County split into District 4 contained only
13.2 %. African-American and Hispanic population.
See id.
31. Ellis County, Texas: While the part of Ellis
County that was split into Democrat Martin Frost's
District 24 contained 29.0% African-American and
Hispanic population, the part split into District 6
contained only 10.8 % African-American and His-
panic population. See id.
12. McCulloch County, Terns: While the part of
McCulloch County that was split into Democrat Chet
Edwards' District 11 contained 30.3% African-
American and Hispanic population, the part of the
county split into Republican Lamar Smith's District
21 contained only 13.1% African-American and His-
panic copulation. See id.
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53a
13. Williamson County, Texas: While the part of
Williamson County that was split into District 14
contained 33.7% African-American and Hispanic
population, the part split into Congressional District
21 contained only 15.5% African-American and His-
panic population. See id.
14. Tom Green County, Texas: While the part of
Tom Green County split into Democrat Charles Sten-
helm's District 17 contained 44.6 % African-Ameri-
can and Hispanic population, the part split into Dis-
trict 21 contained only 13.1% African-American and
Hispanic population. See id.
15. Fort Bend County, Terns: The part of Fort
Bend County that was split into Democrat Mike
Andrews' District 25 contained 80.2% African-
American and Hispanic population, while the part of
Fort Bend County split into District 22 contained
only 2970 African-American and Hispanic popula-
tion. See id.
Another split of a different sort merits mention,
specifically the splitting of the city of Amarillo, which
lies in both Potter and Randall Counties, Randall
County and its portion of Amarillo were included in
Republican Larry Combest's District 19, while Potter
County and its share of the city were sent to Dem-
ocrat Bill Sarpalius' District 13. During debate on
the Senate floor on the day of the plan's passage,
Senator Johnson explained the split of Amarillo as a
response to the demands of the minority communities
in the city:
SIBLEY: You mentioned the Black population
of ah Amarillo was moved into the 13th Con-
gressional District. For what purpose?
JOHNSON: Their direct quote to me, and [sic]
was that they would rather be in Potter and
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54a
have a Representative that they could relate to
best and the-the respect to the other one in
Randall, and they felt that with the two the
various populations could communicate well and
they had two good team members to look after
their interests.
United States Exh. 1092 at 22; see also Dep. of
Johnson at 243.
D. Expert Testimony
This portion of the opinion provides a brief sum-
mary of the conclusions of most of the experts em-
ployed by the parties. Repeating or summarizing
the methodology employed by the experts is avoided
in the interest of brevity. References to the volum-
inous reports submitted by the experts will point
the interested reader in the right direction.
Dr. Ronald Weber was the plaintiffs' main expert
witness and their only expert to testify at trial. Dr.
Weber made the following conclusions in his report:
race was the overriding factor in the drawing of
lines for Texas Congressional districts; Plan C657
violates traditional districting criteria by creating
noncompact districts as well as by splitting 35 coun-
ties and a number of municipalities; districts 15, 18,
20, 28, and 30 are "overly safe" from the standpoint
of assuring the election of a candidate of choice of
African-American or Hispanic voters. See Plaintiff
Exh. 36. Finally, Dr. Weber concluded with an anal-
ysis of alternative districting plans, including Plan
C676 which he developed for this litigation. 35.  See id.
at 30.
___________________(footnotes)
35 An overview of the alternate districting proposals is
provided in part E. supra.
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55a
Dr. Webber's conclusions as to the compactness of
the Congressional districts merit elaboration. Em-
ploying an "eyeball" approach to compactness, Dr.
Weber concludes that Districts 3, 4, 5, 6, 8, 9, 12,
14, 15, 15, 18, 19, 21, 22, 23, 24, 25, 28, 29, and
30 are not compact. See id. at 10. Next, employing
three quantitative measures of compactness, disper-
sion compactness, perimeter compactness, and popu-
lation compactness, Dr. Weber observes that ten of
the districts-3, 4, 6, 14, 18, 21, 23, 25, 29, and
30-score in the lowest category on one of the three
compact measures. See id. at 11; see also Pildes &
Niemi, supra at 549-50, 553-59 (1993) (assessing
worth of each quantitative measure in Shaw-type
inquiry}.
Dr. Allan J. Lichtman served as the main expert
for the State of Texas. His report offers three major
conclusions. First, Dr. Lichtman concludes that Plan
C657 "substantially protects incumbents of both the
Democratic and Republican parties." State Exh. 14
at 6. Second, elections in the areas in which the state
created majority-minority districts are characterized
by racially polarized voting between Angles and mi-
norities. See id. at 4. Finally, Dr. Lichtman suggests
that the three alternative plans proposed by plain-
tiffs-Dr. Weber's Plan C676, Senator Johnson's orig-
inal Plan C500, and the Owens-Pate Plan C606-
are deficient in that they "fall well short of the legis-
lative goal of protecting incumbents, both Democrats
and Republicans," id. at 5, and effectively reduce
opportunities for minorities to elect candidates of
choice. See Plaintiff Exh. 35 (Plan C676) ; Plaintiff
Exh. 33 (Owens-Pate Plan C606) ; Plaintiff Exh. 29
(Plan C500).
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56a
Two other experts for the state submitted reports.
Dr. Chandler Davidson discussed the history of
African-American voting rights in Texas. See State
Exh. 17. He concluded that racial polarization "in
the sociological sense" still exists in Texas and that
such polarization will actually increase if the number
of majority-minority districts decreases. See id. at
87. Dr. Paul Geisel provided a detailed demographic
profile of Districts 18, 29, and 30. See State Exh. 18.
The Lawson defendant-intervenors submitted the
report of Dr. Richard Murray. See Lawson Exh, 26.
Dr. Murray reviewed the history of Congressional
redistricting in Harris County, focusing especially on
the 1991 redistricting of the county. See id. at L
`Dr. Murray observed that various factors influenced
the Legislature in designing Districts 18 and 29: a
clear commitment to improve the representational op-
portunities for Hispanics; the personal ambitions of
certain members of the Harris County delegation;
protection of incumbents; party politics; class inter-
ests; preservation of the 18th as an African-Ameri-
can majority seat; and keeping certain neighborhoods
together. See id. at 17-18.
The LULAC defendant-intervenors submitted the
report of Dr. Robert Brischetto. See LULAC Exh.
`19. Dr. Brischetto's report evaluates Dr. Weber's
alternative plan and concludes that it "discrimi-
nates against Hispanic voters." See id. at 16. Dr.
Brischetto suggests that the alternative plan attempts
to "crack," " pack," and "stack" the minority popula-
tions in South Texas. See id,
Finally, the United States submitted the reports
of four experts. Dr. Paul Waddell conducted an
analysis of land uses as related to the boundaries of
Congressional District 30. See United States Exh.
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57a
1070. Dr. J. Morgan Kousser examined the motiva-
tions of recent Congressional redistricting efforts in
Texas. See United States Exh. 1071. In reviewing
1991 redistricting efforts, Dr. Kousser essentially con-
cludes:  36.
It is conceivable that there are instances in
which a desire to create a district for one racial
or ethnic group is the only explanation for the
shape of legislative boundaries. The evidence
shows conclusively that Texas in 1991 is not such
an instance.
Id. at 53. Dr. Lisa Handley evaluated the districts
under Plan C657 in terms of their geographic com-
pactness and concluded that the plan is "reasonably
compact because a large portion of the districts are
composed of whole counties and follow state, county,
and city boundaries." 37.  United States Exh. 1067 at
5. Lastly, Dr. Charles Cotrell summarizes 5 objec-
tions in Texas since the state became a covered juris-
diction and considers this historical backdrop in light
___________________(footnotes)
36 AS will be fully set out in part IV of the opinion  infra,
the court strongly disagrees with Dr. Kousser's view of the
"evidence" before him. Furthermore, Dr. Kousser's inquiry
was limited to whether "other motives at least partially ex-
plain why the lines . . . were drawn where they were" or
whether race was literally the only reason for district shapes.
See United States Exh. 1071 at 1. In part IV, we elaborate
on our disagreement with this implicitly narrow view of a
Shaw claim.
37 At least with regard to Districts 18, 29, and 30, the
suggestion that these districts are "compact" under any rea-
sonable definition of the term is a proposition we flatly
reject. See IV. A. 1 2. infra.
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58a
of the present district configuration See United
States Exh. 1065.
E. Other Districting Plans
Three alternative districting plans received con-
siderable attention in this litigation and will there-
fore be briefly described. The first was authored by
Dr. Weber, the plaintiffs' main expert witness, as
part of his report. See Plaintiff Exh. 35. According
to Dr. Weber, Plan C676 allows two African-Ameri-
can districts-one each in Dallas County and Harris
County; six Hispanic districts-one in far South
Texas, one in El Paso County, two in Bexar County,
one in South Texas with Nueces County as its "ma-
jor center," and one in rural southwest Texas; and
one district in Harris County "subject to substantial
African-American and Hispanic influence." Plain-
tiff Exh. 36 at 31. Each of these majority-minority
districts "[is] also designed to be more compact
than the comparable districts in the current state
plan." Id. at 32.
Dr. Weber described the principles he followed
in developing Plan C767:
I tried to follow the principle that the metropoli-
tan counties would be split as little as they
could, but recognizing, of course, you have to
construct whole districts in each of those. What
I tried to do is do as few splits between coun-
ties, and I got down to basically the point where
you have to do some because you have one per-
son, one vote considerations; but basically one of
the most important things I did is I told the
operator of the computer, I said: ''I do not want
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59a
you to put on the screen the racial make-up of
any of the building blocks we are going to use."
6/28/94 TR. at 133. Although he did not want to
split any VTD's, Dr. Weber testified that he even-
tually had to for one-person, one-vote considerations.
See id.
William Owens and A.J. Pate, two concerned citi-
zens of Texas, presented their plan-eventually de-
nominated C606-to the Texas House Redistricting
Committee at hearings in Austin. See Plaintiff Exh.
33. Their plan-entitled "A Modest Proposal for
Fair Redistricting in Texas for the 1990's''-creates
a new urban African-American seat in Dallas, "with
the possibility of creating a new rural Black impact
district." Id. at 11. The Owens-Pate plan also cre-
ates two new Hispanic seats, one in the Houston
area and an additional seat along the border with a
population base in Laredo. See id. at 3. They be-
lieve their plan results in "compact districts of ba-
sically equal population, which unifies communities of
similar economic/geographic interests" as well as
corrects for the underrepresentation of ethnic and
racial minorities. See id. at 11.
Senator Johnson's plan-denominated C500-was
first released in May 1991 and drew a great deal
of reaction from around the state. See Dep. of John-
son at 51. While minority voters did not object,
certain incumbents-especially Congressman Martin
Frost-were upset. See id. Under C500, Congress-
man Frost's residence was not in District 24 but was
included in Senator Johnson's proposed African-
American District 30. See id. at 52. Under the plan,
five other congressmen would have been thrown into
districts other than the ones they currently represent.
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60a
See United States Exh. 1036 ("Frost, Bryant Aides
Assail New House District Plan", Dallas Morning
News, 5/13/91 ). Dr. Weber was impressed with
C500 :
I was really amazed that the very first plan
that was released to the public was in my mind
the plan that the legislature if, all other things
being equal, if they had to rush quickly, they
could have adopted it and they would have had
a fairer plan than the plan the legislature
adopted. 
6/28/94 TR. at 129.
IV. FACTUAL FINDINGS AND LEGAL
      CONCLUSIONS
This court has jurisdiction pursuant to 28 U.S.C.
1331, 1343, 2284. Having considered the evidence
the memoranda of law submitted by the parties, the
stipulations of fact, the proposed findings and con-
clusions, and counsel's oral arguments, this court
makes the following findings of fact and conclusions
of law, pursuant to Fed. R. Civ. P. 52 (a). Any
conclusion of law which should be construed as a
finding of fact is hereby adopted as such. Any find-
ing of fact that should be construed as a conclusion
of law is hereby adopted as such.
Plaintiffs contend that under Shaw v. Reno, 113
S.Ct. 2816 (1993) and the Equal Protection Clause,
all but six of the State's Congressional districts are
illegally constituted. They allege that Congressional
Districts 18, 29, and 30 awed their extraordinarily
odd shapes to an intent to segregate minority voters.
These districts, together with District 28, will here-
inafter be referred to occasionally as the "voting
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61a
rights districts." Other districts in the state, accord-
ing to the plaintiffs, are the products of intentional
segregation because they split counties and cities
along racial lines to achieve population balance. 38.
To evaluate these contentions it is necessary first
to review the criteria of a Shaw claim and to weigh
some of the State's general defenses. We then an-
alyze separately the voting rights districts and the
State's other Congressional Districts that are chal-
lenged by the plaintiffs. The pertinent issues in each
instance are what role race played in the formula-
tion of the districts and whether the resulting dis-
tricts' boundaries are sufficiently explainable on other
than racial grounds. Finally, we consider whether
the state had a compelling justification to segregate
voters by race.
The way in which the Court described the nature
of the equal protection claim both places Shaw
squarely in the traditional mode of constitutional
analysis concerning racial classifications and reflects
the Court's sensitivity to the legislative districting
___________________(footnotes)
38 Both the state and the Lawson Intervenors have chal-
lenged the standing of the plaintiffs to question the constitu-
tionality of Congressional districts other than those in which
they reside. Their argument seems clearly refuted by Shaw,
in which the plaintiffs, five residents of Durham County,
North Carolina, challenged the makeup of the two African-
American majority Congressional districts in the state. The
plaintiffs resided in one of those districts and in an adjoining,
non-African-American majority district. By deciding that
appellants stated a claim for constitutional relief, the Court
inferentially decided they had constitutional standing to sue.
See Shaw, 113 S. Ct. at 2821. On remand, the three-judge
court in Shaw, No. 92-202-CIV-5-BR (E.D.N.C. August 1,
1994), also concluded that the plaintiffs had standing. We
agree with that court's reasoning and conclusion.
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62a
process. For reasons that we shall explain, we do
not agree with the narrow view that Shaw recognizes
an equal protection claim only in such extreme cir-
cumstances of racial gerrymandering that hardly any
such claim will ever be provable. On the contrary,
the Court itself distinguished Shaw on an obvious
ground from the truly narrow constitutional claim
of partisan gerrymandering adopted in Davis v.
Bandemer, 478 U.S. 109, 118-27 (1986) : racial clas-
sifications are accorded the strictest constitutional
scrutiny. See Shaw, 113 S. Ct. at 2828.
What then, does Shaw identify as the characteris-
tics of equal protection in the legislative districting
process? The Court accepted the claim of registered
voters in North Carolina that "redistricting legisla-
tion that is so extremely irregular on its face that it
rationally can be viewed only as an effort to segregate
the races for purposes of voting, without regard for
traditional districting principles and without suffi-
ciently compelling justification" is unconstitutional.
Id. at 2824.
The central purpose of the Fourteenth Amendment
"is to prevent the states from purposefully discrimi-
nating between individuals on the basis of race." Id.
(citing Washington v. Davis, 426 U.S. 229, 239
(1976) ). Drawing on traditional Fourteenth Amend-
ment precedent in racial cases, the Court pointed out
that benign or remedial racial classifications are as
suspect as malign discrimination and that among the
vices of racial classifications is their tendency to
"stigmatize individuals by reason of their member-
ship in a racial group and to incite racial hostility."
Id. (citing Richmond v. J.A. Croson Co., 488 U.S. 469,
493 (1989) (plurality opinion)). State legislation
that expressly distinguishes among citizens because
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63a
of their race must be narrowly tailored to further a
compelling government interest. See Wygant v.
Jackson ,Bd. of Ed., 476 U.S. 267, 277-78 (1986)
(plurality opinion). These analytical principles apply
not only to legislation that makes explicit racial dis-
tinctions but also to those "rare" statutes that al-
though race-neutral, are on their face " `unexplain-
able on grounds other than race.'" See Shaw, 113
S.Ct. at 2825 (quoting Arlington Heights v. Metro-
politan Housing Development Corp., 429 U.S. 252,
266 (1977) ) ; see also Yick Wo v. Hopkins, 118 U.S.
356,373-74 ( 1886).
The Court agreed with the plaintiff voters' asser-
tion that if redistricting legislation is so bizarre on
its face "that [it] is `unexplainable on grounds other
than race,' it demands the same close scrutiny that
we give other state laws that classify citizens by
race." Shaw, 113 S. Ct. at 2824-25. The Court cited
voting rights cases to support that conclusion. Once
established, the Court said, a racial gerrymander
should not receive less scrutiny under the Equal Pro-
tection Clause than other state legislation classifying
citizens by race. See id. at 2826.
Having connected the constitutional claim recog-
nized in Shaw to its unbroken line of Fourteenth
Amendment jurisprudence, the Court drew on two
voting rights cases and a hypothetical example to
illustrate how to recognize a racial gerrymander.
Gormillion v. Light foot, 364 U.S. 339 (1960), repre-
sents the "exceptional case" in which proof of inten-
tional classification is easy. See Shaw, 113 U.S. at
2826. In Gomillion, the Court illustrated its opinion
with a map of the formerly rectangular shape of
Tuskegee, Alabama, as it had been disfigured by an
"uncouth 28-sided" municipal boundary line that. al-
---------------------------------------- Page Break ----------------------------------------
64a
legedly fenced out of the city limits all but four or
five of the locality's African-American citizens. Simi-
larly obvious, Shaw observed, "would be a ease in
which a State concentrated a dispersed minority popu-
lation in a single district by disregarding traditional
districting principles such as compactness, contiguity,
and respect for political subdivisions." Id. at 2827.
Just as Gomillion demonstrates that irregularly
shaped districts can be evidence of purpose or intent
to segregate voters by race, so in a later ease the
Supreme Court held that de facts segregation alone
is insufficient if other districting criteria contradict a
discriminatory  purpose. See Wright v. Rockefeller,
376 U.S. 52 (1964). In Wright, New York state had
redistricted the New York City area to accommodate
four seats in Congress rather than the six that had
previously existed. As the district lines were drawn,
one district was predominantly white, one was pre-
dominantly "non-white," and the others had sizable
minority populations. Plaintiffs contended that the
minorities had been packed into one district in viola-
tion of Gomillion. The Supreme Court, however,
accepted the fact findings of the three-judge panel
that intent to discriminate racially had not been
proven. Wright observed that because of the geo-
graphical concentration of mm-white voters in one
area of the county, it would have been difficult to "fix
districts so as to have anything like an equal divi-
sion of these voters among the districts." Id. at 57.
Wright aptly illustrates the limits of a Shaw claim.
Both the Supreme Court and three-judge court deci-
sions in Wright make plain that although there were
two racially distinct Congressional districts, their
borders were not highly irregular; their configura-
tion was logically traceable from the pre-existing dis-
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65a
trict boundaries; each district was reasonably com-
pact and contiguous; and indeed, to have split Up
a minority population that. resided primarily in one
geographic area would have been difficult to accom-
plish. See id. at 56-58,; "Wright v. Rockefeller, 211
F. Supp. 460, 466-68 (S.D.N.Y. 1962).
Wright and Gomillion represent the two poles of
a potential Shaw claim. 39.  From Gomillion, it appears
that bizarrely shaped districts whose boundaries were
created for the purpose of racially segregating. voters
are unconstitutional. The Court's hypothetical ex-
ample likewise condemns districts that bring together
a dispersed minority population without regard for
traditional districting criteria. If a majority-minority
district reasonably adheres to objective districting
factors, however, as in Wright, no invidious discrim-
ination exists; that type of district is justified on
its own terms apart from the incidental factor of
race. 40.
___________________(footnotes)
39 In thus describing a Shaw claim. we do not mean to sug-
gest that other racially motivated districting or election pro-
cedures are no longer constitutionally protected. As Shaw
stated, the intentional dilution of minority voters remains
unconstitutional under the Fourteenth Amendment. See
White v. Register, 412 U.S. 755, 765-66 (1973). The Fif-
teenth Amendment proscribes outright denial or abridgement
of the right to vote.
40 With due respect to the two-judge majority on remand of
Shaw, No. 92-202 -CIV-5-BR (E.D.N.C. Aug. 1, 1994), we
disagree strongly that the misshapen boundaries of a racially
constructed district are merely prima facie evidence of a
constitutional violation and not part of its essence. As we
pointed out above, Shaw's reliance upon the contrast among
Gomillion, the Court's dispersed minority hypothetical, and
Wright refute this reading. Moreover, the Supreme Court's
insistence that appearances do matter, because tortuously con-
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66a
Texas asserts two general defenses that, if ac-
cepted, would undermine essential premises behind
Shaw's definition of unconstitutional race-conscious
redistricting. First, the State asserts that its dis-
tricts cannot be unconstitutionally bizarre in shape
because Texas does not have and never has used tra-
ditional redistricting -principles such as natural geo-
graphical boundaries, contiguity, compactness, and
conformity to political subdivisions. Second, the State
asserts that the districts' irregular shapes were caused
not by racial classification of voters in any instance
but by the Congressional delegation's demands, ac-
ceded to by state government, that all incumbent
Congressional officeholders be protected.
It is true that Texas has no constitutional or stat-
utory constraints on creating legislative districts.
However, the portrait of redistricting history in
Texas, as painted by the state, is inaccurate. From
the State's cm-rent perspective, successive generations
of Texas legislators have eschewed tying districts to
___________________(footnotes)
strutted districts foster rather than dispel racial conscious-
ness and stereotyping, see Shaw, 113 S.Ct. at 2827-82, ex-
pressly relates to traditional districting principles.
The Shaw remand court's majority had to minimize Shaw's
concern with the appearance of racial districts for obvious
reasons. By all accounts, North Carolina's majority-minority
districts, like those of Texas, are among the most distorted
in the nation. If those districts survive constitutional close
scrutiny, then Shaw may be a meaningless exercise.
The remand majority in Shaw discounted traditional dis-
stricting principles both (1) as an element of the equal pro-
tection violation and (2) as a standard by which to compare
the narrow tailoring of a district found to be racially gerry-
mandered. "We have commented on the error in the first part
of the Shaw remand majority's analysis. The error in the
second part of their rationale is discussed infra n.55.
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67a
pesky constraints like geography, political subdivi-
sion boundaries, compactness, and contiguity. Cer-
tainly, this state's vast layout has undoubtedly made
it difficult to fit Congressional districts perfectly
within single geographic regions. But since 1960, the
principle of assigning at least one Congressional seat
to each major city has been followed, satisfying obvi-
ous geographical and community interests. See Law-
son Exh. 26 at 8, 9, 11 (maps of Harris County dis-
tricts in 1957, 1965, and 1971).
Texas points to only one Congressional district that
was in the past configured in a highly irregular man-
ner. That was Congressional District 6, which spanned
an ungainly rural and urban corridor running from
Dallas to Houston and was held for many years by
Representative "Tiger" Teague. The exception-a
mild deviation from traditional districting principles
when compared to the 1991 districts-seems to prove
the rule that, generally, Texas has not intentionally
disregarded traditional districting criteria. A glance
at the maps showing the organization of Texas' Con-
gressional districts in 1980 refutes the State's argu-
ment that it recognizes no state interest in traditional
redistricting principles. See Plaintiff Exh. 28A (map
of Plan C001).
More fundamentally, the State describes incumbent
protection as a "state interest" in redistricting that
sufficiently explains otherwise irregular Congressional
district boundaries. There is again tension between
the state's contention and the facts of this case. For
one thing, no more than two or three incumbent Texas
Congressmen were seriously jeopardized by the Legis-
lature creating more minority districts. Additionally,
never before have districts been drawn on a block-
by-block or neighborhood- or town-splitting level to
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68a
corral voters perceived as sympathetic to incumbents
or to exclude opponents of. the incumbents. This form
of incumbent protection is much different in degree
from the generalized, and legitimate, goal of incum-
bent and seniority protection previously recognized
by the Supreme Court. See, e.g., White v. Weiser,
412 U.S. 783, 791 (1973); Gaffney v. Cummings, 412
U.S. 735,753 n.18 (1973).
It is important to realize that as enacted in Texas
in 1991, many incumbent protection boundaries sabo-
taged traditional redistricting principles as they rou-
tinely divided counties, cities, neighborhoods, and
regions. 41.  For the sake of maintaining or winning
seats in the House of Representatives, Congressmen
or would-be Congressmen shed hostile groups and
potential opponents by fencing them out of their dis-
tricts. See 6/30/94 TR. at 4-46 (construction of Dis-
trict 18); Plaintiff Exh. 15 at 5 {construction of Dis-
trict 29). The Legislature obligingly carved out dis-
tricts of apparent supporters of incumbent, as sug-
gested by the incumbents, and then added appendages
to connect their residences to those districts, See
111.C.3. supra. The final result seems not one in which
the people select their representatives, but in which
the representatives. have selected the people. 42.
___________________(footnotes)
41 Congressional redistricting in 1980 split ten counties. See
Plaintiff Exh. 27. Of' those ten counties, Harris, Dallas, and
Bexar were split because the population of the county ex-
ceeded the number of persons required for a single district.
Thirty-four Texas counties were split for the current plan.
See id. Only Harris, Dallas, Bexar, Tarrant, Travis, and El
Paso were split because the population of those counties ex-
ceeded the number of persons required for a single district.
42 See Plaintiff Exh. 14 at 6  14.
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69a
But in any event, the State's realization of its goal
may not fully undo the traditional principles of dis-
tricting that Shaw uses as a benchmark. Shaw no-
where refers to incumbent protection as a traditional
districting criterion. Shaw acknowledges that com-
pactness, contiguity, respect for political subdivisions,
and like criteria-though not constitutionally required
-are "objective factors" that may disprove a racial
gerrymander claim. See Shaw, 113 S. Ct. at 2827.
To this extent, Shaw implicitly reaffirms the impor-
tant interconnection of community and geography and
effective representative government in drawing its
distinction between those ideal districting criteria and
a racial gerrymander that ignores them. 43.  While these
___________________(footnotes)
                                                 
43 Traditional, objective districting criteria are a concomit-
ant part of truly "representative" single member districting
plans. Organized political activity takes place most effectively
within neighborhoods and communities; on a larger scale,
these organizing units may evolve into media markets and
geographic regions. When natural geographic and political
boundaries are arbitrarily cut, the influence of local organiza-
tions is seriously diminished. After the civic and veterans
groups, labor unions, chambers of commerce, religious con-
gregations, and school boards are subdivided among districts,
they can no longer importune their Congressman and expect
to wield the same degree of influence that they would if all
their members were voters in his district. Similarly, local
groups are disadvantaged from effectively organizing in an
election campaign because their numbers, money, and neigh-
borhoods are split. Another casualty of abandoning tradi-
tional districting principles is likely to be voter participation
in the electoral process. A citizen will be discouraged from
undertaking grass-roots activity if, for instance, she has at-
tempted to distribute leaflets in her congressman's district
only to find that she could not locate its boundaries.
In influencing the Legislature to draw districts that ensured
their electoral success, Texas Congressional incumbents ap-
parently foreswore these principles and opted to rely on their
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70a
criteria are important in and of themselves, they are
critical to Shaw's calculus; districts that have no logi-
cal boundaries except those dictated by race are per-
ceived by voters within and without the districts as
existing solely to afford racial representation. 44.
___________________(footnotes)
name recognition and a small base of zealous supporters to
gain re-election. An. even more pernicious tendency would
seem to follow their incumbent gerrymandering:  as the in-
fluence of truly local organizations wanes, that of special
interests waxes. Incumbents are no longer as likely to be held
accountable by vigilant, organized local interests after those
interests have been dispersed. The bedrock principle of self-
government, the interdependency of representatives and their
constituents, is thus undermined by ignoring traditional dis-
tricting principles.
44 Shaw eloquently stated that constitutional offense created
by such racial gerrymandering:
  Put differently, we believe that reapportionment is one
area in which appearances do matter. A reapportionment
plan that includes in one district individuals who belong
to the same race, but who are otherwise widely separated
by geographical and political boundaries, and who may
have little in common with one another but the color of
their skin, bears an uncomfortable resemblance to politi-
cal apartheid. It reinforces the perception that members
of the same racial group-regardless of their age, educa-
tion, economic status, or the community in which they
live-think alike, share the same political interests, and
will prefer the same candidates at the polls. We have re-
jected such perceptions elsewhere as  impermissible racial
stereotypes. By perpetuating such notions, a racial gerry-
mander may exacerbate the very patterns of racial bloc
voting that the majority-minority districting is some-
times said to counteract.
  The message that such districting sends to elected rep-
resentatives is equally pernicious. When a district obvi-
ously is created solely to effectuate the perceived com-
mon interests of one racial group, elected officials are
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71a
The talismanic status of incumbent protection in
the State's argument somewhat resembles Alabama's
defense in Gomillion v. Lightfoot, 364 U.S. 339
(1960 ). As Justice Frankfurter described it:
The respondents invoke generalities expressing
the state's unrestricted power-unlimited, that
is, by the United States Constitution-to estab-
lish, destroy, or reorganize by contraction or ex-
pansion its political subdivisions . . . [W]e
___________________(footnotes)
more likely to believe that their primary obligation is to
represent only the members of that group, rather than
their constituency as a whole. This is altogether anti-
thetical to our system of representative democracy.
Justice Souter apparently believes that racial gerry-
mandering is harmless unless it dilutes a racial group's
voting strength. As we have explained, however, reap-
portionment legislation that cannot be understood as
anything other than an effort to classify and separate
voters by race injures voters in other ways. It reinforces
racial stereotypes and threatens to undermine our system
of representative democracy by signaling to elected offi-
cials that they represent a particular racial group rather
than their constituency as a whole. Justice Souter does
not adequately explain why these harms are not cogniza-
ble under the Fourteenth Amendment.
Racial  classifications with respect to voting carry particu-
lar dangers. Racial gerrymandering, even for remedial
purposes, may balkanize us into competing racial fac-
tions; it threatens to carry us further from the goal of a
political system in which race no longer matters-a goal
that the Fourteenth and Fifteenth Amendments embody,
and to which the Nation continues to aspire.
Shaw, 113 S. Ct. at 2927-32 (citations omitted) (emphasis
added).
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72a
freely recognize the breadth and importance of
this aspect of the state's political power. To
exalt this power into an absolute is to miscon-
ceive the reach and rule of this court's decisions.
Id. at 343. Justice Frankfurter said that the State
was divorcing the teaching of other eases from their
concret factual circumstances. He concluded:
[S]uch power [to redistrict], extensive though
it is, is met and overcome by the [Fourteenth
Amendment] to the Constitution of the United
states . . . the opposite conclusion, urged upon
us by respondents, would sanction the achieve-
ment by a state of any impairment of voting
rights whatever so long as it was cloaked in the
garb of realignment of political subdivisions.
Id. at 345. Reliance on a Gomillion-like argument
ill-befits the State of Texas. Incumbent protection is
a valid state interest only to the extent that it is not
a pretext for unconstitutional racial gerrymandering.
Finally, notwithstanding the State's attempts to
minimize their significance, raciaI data were an om-
nipresent ingredient in the redistricting process.
Preparatory to the 1991 legislative sessions, the
REDAPPL system contained the State's redistricting
maps that were capable of displaying every neighbor-
hood in the state down to the street and block level.
As soon as they became available following the 1990
census, the racial statistics for each street and block
were coordinated with the REDAPPL system so that
the programmer could display both kinds of informa-
tion simultaneously. No other socioeconomic census
data were placed on the computer or available to the
Legislature.
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73a
Chris Sharman, a legislative assistant heavily in-
volved in the drawing of Congressional districts, con-
firmed the ubiquity of racial data on the REDAPPL
computer system. He also testified that other forms
of information pertinent to redistricting were avail-
able to the Legislature or the Congressional Delega-
tion. Such information included socio-economic infer-
ences drawn from the shape of streets; drive-by
knowledge of territory gained by legislative aides;
and the intimate familiarity of legislators with their
constituents' neighborhoods. While some political
information was available on the computer at the
precinct level, none of the partisan voting informa-
tion -was available for block-by-block portions of
VTD's. In other words, the racial information was
the most specific information that could be used by
those involved in the districting process.
That district lines throughout the state coordinate
very closely with racial population boundaries. is
hardly disputed by the state. The plaintiffs' expert
demonstrated on maps of most of the 34 Texas coun-
ties whose boundaries were split among Congressional
districts how closely racial and ethnic population
data were coordinated with the Congressional bound-
ary lines. In numerous instances, the correlation
between race and district boundaries is nearly per-
fect. In the Dallas Metroplex area and the Harris
County area, where three voting rights districts were
created, the racial character of the line-drawing. is
manifest. The borders of Districts 18, 29, and 30
change from block to block, from one side of the
street to the other, and traverse streets, bodies of
water, and commercially developed areas in seem-
ingly arbitrary fashion until one realizes that those
corridors connect minority populations.
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74a
More specific details concerning the racial patterns
of districting will be developed below. This court felt
compelled to reveal the clarity and detail of the racial
input into redistricting not simply because of its
significance in this case. The question must arise in
the future, when census statistics and other political
information become even more sophisticated, how far
legislators will go in adjusting district lines to pro-
tect their incumbency. Just, as they micro-manipu-
lated the racial composition of Texas Congressional
districts in 1991, they maybe enabled by a new body
of statistical data to select their voters even more
precisely in 2001.
Before proceeding with the discussion of particular
districts, it is necessary to state our understanding
of the allocation of the burden of proof under Shaw
inasmuch as our understanding differs from the
advocacy-based approaches of the parties. We agree
with the courts in Hays and in Shaw on remand that
a Shaw claim should be proved by the method typical
of equal protection analysis . Plaintiffs are obliged
to present evidence in support of their racial gerry-
mandering claim as outlined in Shaw. Defendants
then have the burden to produce evidence that any
districts found to be racially gerrymandered were
dictated by a compelling state interest and are nar-
rowly tailored to further that interest. Like the court
in Hays, but unlike the majority on remand of Shaw,
we believe part of the State's burden of production
required it to demonstrate that the appearance of the
racially gerrymandered districts, as well as their
existence, were narrowly tailored. 45.   As in all Consti-
tutional cases, the plaintiffs retain the ultimate bur-
den of proof.
___________________(footnotes)
45 Seen. 55 infra.
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75a
A. The Voting Rights Districts
The defendants concede that Congressional Dis-
tricts 18, 29, and 30 were created for the purpose of
enhancing the opportunity of minority voters to elect
minority representatives to Congress. District 18
has been an African-American majority district since
1970; although its African-American population had
declined significantly since 1980, there is no evidence
that the Legislature sought to redistrict that seat in
a racially neutral way. Congressional District 29,
also in Houston, is artfully interwoven with Congres-
sional District 18 and responded to the demands of
the Hispanic community to create a district for the
burgeoning Hispanic population in Harris County. 46.
District 30 in Dallas was intended to enable Dallas'
large African-American community to elect a Con-
gressman. Finally, District 28 assured that the ex-
panding Hispanic community in South Texas would
elect another member of the Texas Congressional
delegation.
The demand for "majority-minority" Congressional
Districts was repeated by numerous interest groups
who appeared before legislative redistricting com-
mittee hearings throughout the state in 1990. Then-
Senator Eddie Bernice Johnson vigorously asserted
the desire of the African-American residents of the
Dallas-Fort Worth Metroplex for an African-American
Congressional seat there. In Houston, the Hispanic
banner was carried by a number of groups; promi-
nently involved in the maneuvering was State Repre-
sentative Roman Martinez, who intended to run for
that seat. Then-State Senator Frank Tejeda from
___________________(footnotes)
46 Ironically, an "Anglo" candidate beat an Hispanic candi-
date in the election to fill this seat.
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76a
San Antonio intended to satisfy South Texas His-
panics' claims upon a seat by drawing a district to
encompass his Congressional aspirations, The rec-
ord, in short, is replete with proof that the Legisla-
ture intended to devise four majority-minority Con-
gressional seats.
This much can hardly be disputed. The State
vigorously disagrees, however, with the suggestion
that HB1, the districting statute, accomplished a
purposeful racial gerrymander. The creation of
majority-minority legislative districts, without more,
may raise no Constitutional question See Shaw, 113
S. Ct. at 2828 (`We express no view as to whether
"the intentional creation of majority-minority dis-
tricts, without more' always gives rise to an equal
protection claim."). To ascertain whether the act of
the state government verged into unconstitutional
territory, the court looks to several sources. Among
other things, departures from traditional districting
principles such as compactness, contiguity, respect
for political subdivisions, and communities of inter-
est are important in determining the legislative in-
tent. See Shaw, 113 S. Ct. at 2825-28. Further, the
public record created in the process of enacting HB1
and the  5 preclearance submission by the State are
important to determining the legislative intent. See
Arlington Heights, 429 U.S. 252, 266-68 (1977).
Our analysis is facilitated by separately discussing
Congressional District 30 and Congressional Districts
.18 and 29. We will then consider District 28.
Finally, we will discuss together the other districts
challenged by the plaintiffs.
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77a
1. Congressional District 30
In creating District 30, the testimony reveals that
the legislators aimed to reach a minority population
of at least 50 % voting age population? the minimum
number thought acceptable to result in the election of
an African-American representative. The ultimate
shape of the district has been described as a body
with tentacles as "complex and attenuated as a series
of DNA molecules." Michael Barone & Grant Ujifusa,
The Almanac of American Politics 1277 (1994) ; see
also Appendix (Map of District 30). The district
sprawls throughout Dallas County, deliberately ex-
cludes the wealthy white neighborhoods of Highland
Park and University Park and extends fingers into
Collin County, which include the outermost suburbs
of Dallas. In Collin County, the district picks up a
small African-American neighborhood. The district
extends into Tarrant County only to pick up a small
border area with a high African-American concentra-
tion. It also reaches out to claim Hamilton Park, an
affluent African-American neighborhood surrounded
by whites. Part of the district runs along the Trinity
River bottom, using it to connect dispersed minority
population. Numerous VTD'S were split in order to
achieve the population mix required for the district.
There is nothing compact or contiguous about this
district. It is at least 25 miles wide and 30 miles
`long, but those measurements do not begin to reveal
the district's geographic complexity. Lying in the cen-
ter of one of the heaviest population areas of Texas,
the district's boundaries reveal as much by what they
exclude as by the population they include. Congress-
woman Johnson was careful to include those African-
American neighborhoods in which she felt the African-
---------------------------------------- Page Break ----------------------------------------
78a
American voting participation rate would be high.
She desired to exclude other neighborhoods in which,
for reasons such as the disability of felony conviction,
African-American voting rate participation would be
low. See 111.C.5. supra. Then-Senator Johnson's tes-
timony demonstrated that race was the primary con-
sideration in the construction of District 30, She
fought with incumbent Democrats Martin Frost and
John Bryant to maintain her share of the Dallas
African-American vote. The jostling for position was
designed to secure a minimum 50 % African-American
total population.
The extent to which this district differs from a
truly compact and contiguous majority-minority dis-
trict is revealed by the plan that then-Senator John-
son herself submitted to the state Legislature. See
Plaintiff Exh. 29. In that plan, a slightly larger
portion of the Dallas County African-American popu-
lation is included within a much more compact geo-
graphic area. Identifiable neighborhoods within Dal-
las remain intact. No VTD'S are split.
The state asserts that the convoluted boundaries of
District 30 are explainable on grounds other than
race. Using a demographic study compiled specifi-
cally for this trial, the State asserts that there are
socioeconomic, geographic, and other similarities
among the residents of District 30. See United States
Exh. 1070. We reject this study for several reasons.
First, there is no evidence that the information it
contains was available to the Legislature in any or-
ganized fashion before District 30 was created. Sec-
ond, the study is not persuasive as an explanation for
the boundaries of District 30. It describes, but it
does not harmonize, the information concerning the
"district, and it does not differentiate the district from
---------------------------------------- Page Break ----------------------------------------
79a
mu-rounding areas. Third, in so far as the study
focuses on multi-family living units, it is inconsistent
with the map drawers' expressed desire to include
many single family homes.
The Lawson intervenors assert that there is a com-
munity of interest among African-American voters
which should be regarded as a legitimate criterion
for legislative districting. Even if this argument
would support the decision of the Legislature to take
African-American voters' group interests into ac-
count in the same way that it does the interest of
other voters, e.g., suburbanites, city-dwellers, re-
tirees, the argument cannot go too far. Because a
large part of this argument is based upon similarities
grounded in race, it is particularly vulnerable to the
Fourteenth Amendment's proscription of racial clas-
sification in our society. Further, the intervenors'
argument will not support the creation of districts
that have no basis in traditional neutral districting
criteria. To permit such districts would fly in the
face of Shaw.
The State also proffers its policy of incumbent.
protection as a non-racial reason for the convoluted
boundaries of District 30. By all accounts, the in-
fighting among Congressmen Frost, Bryant, and
then-Senator Johnson for "sympathetic" voters was
fierce. As it happens, however, many of the voters
being fought over were African-American. The State
cannot have it both ways. It cannot say that
African-American voters are African-American
when they are moved into District 30, but they are
merely "Democrats" when they are deliberately
placed in a contiguous district for the purpose of
bolstering the re-election chances of other Demo-
---------------------------------------- Page Break ----------------------------------------
80a
crats. 47.  The court considers it significant that Robert
Mansker, an aide to Congressman Martin Frost, who
according to witnesses played a key role in developing
the Congressional reapportionment plan, vigorously
avoided plaintiffs' subpoena to testify in this case. 48. 
See Plaintiff Exh. 37. Parenthetically, if incumbent
protection was as important to the process as the
State's witnesses testified in deposition and at trial,
it is surprising that the State offered virtually no
___________________(footnotes)
47 The state inserts that its position is bolstered by the
Fifth Circuit's recent en bane decision in League of United
Latin American Citizens v. Clements, 999 F.2d 831 (5th Cir.
1993) (en banc), cert. denied, 64 U.S.L.W. (1994). In that
2 vote dilution case, the court concluded that the plaintiffs
had not proven that racially disparate outcomes in state
judicial races were caused by white bloc voting against the
preferred candidates of African-Americans or Hispanics. Ii-
stead, the proof demonstrated that partisan politics rather
than racial politics was the determining influence. The state
argues that LULAC requires us to find that the legislature's
drawing of district boundary lines was also based on partisan
politics rather than race. We disagree. The State's argument
compares apples and oranges. In LULAC, the plaintiffs' bur-
den was to prove whether race motivated white voters
throughout the state. Their proof largely consisted of bivari-
ate ecological regression statistics and other inferential tech-
niques. In this case, however, the legislature's intent was
proven directly, through testimony of legislators, the  5 per-
clearance submission, and the use of racial data on the
REDAPPL system, as well as inferentially from the makeup
of the districts themselves.
48 At least one newspaper reported that Congressman Frost
acknowledged that Mr. Mansker avoided subpoenas "by dis-
appearing for several days in order to avoid helping Repub-
licans with their case." David Flick, GOP Foe Challenges
Frost to Release Aides' Vouchers, Dallas Morning News,
July 29, 1994, at 23A.
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81a
such evidence either in, its voluminous 5 preclear-
ance submission to the Justice `Department. or in
Terrazas v. Slagle, the previous challenge to the 1991
Congressional districts. With regard to District' 30,
we conclude that the policy of incumbent protection,
to the extent it motivated the Legislature, was `not a
countervailing force against racial gerrymandering.
Instead, racial gerrymandering was an essential part
of incumbency protection, as African-American vot-
ers were deliberately segregated on account of their
race among several Congressional districts.
We conclude that the contours of Congressional
District 30 are unexplainable in terms other than
race. They have no integrity in terms of traditional,
neutral redistricting criteria. Neighborhoods, VTD'S,
and individual streets were split to achieve the dis-
trict's racial mix. The district was carefully gerry-
mandered on a racial basis to achieve a certain num-
ber of African-American voters; in order to protect
incumbents, other African-American voters were de-
liberately fenced out of District 30 and placed in
other districts that are equally "untraditional." Plain-
tiffs have carried their burden of proving a racial
gerrymander.
2. Congressional Districts 18 and 29
Even more than in the case of District 30, Con-
gressional Districts 18 and 29 were tailored to in-
clude designated numbers of minority voters. Achiev-
ing these results was no simple task. African-
American and Hispanic populations inhabit large
portions of Harris County in a checkerboard pattern
with each other and with white citizens. Over,, the
last decade, in fact, former African-American major-.
ity District 18 had lost members of that minority
---------------------------------------- Page Break ----------------------------------------
82a
population and gained over 40% Hispanic population.
Nevertheless, the preservation of District 18 as an
African-American majority district was assumed.
A large part of the increase in Harris County
Hispanic population during the 1980's was attribut-
able to immigration. The consequences of immigra-
tion for voting rights matters are problematic. 49.  The
Legislature, however, decided to attempt to create a
majority-Hispanic Congressional District. The shape
of District 29 then became subject to several con-
straints: the dispersion of the Hispanic population
around the borders. of District 18 and far to the east
in Harris County and the conflicting ambitions of
Representative Martinez and then-Senator Gene
___________________(footnotes)
49 Under the Constitution as routinely interpreted, repre-
sentation in the U.S. House of Representatives is apportioned
among the states according to the number of persons-not
just citizens-in their population. States with high numbers
of non-citizens, like Texas, benefit from this situation,
But the consequences of a large non-citizen population for
voting rights issues are unclear and have been side-stepped
by the Supreme Court. See Johnson v. DeGrandy, 114 S. Ct.
2647, 2662 n.18 (1994). In Texas, the overwhelming ma-
jority of non-citizens are Hispanics. Former Representative
Roman Martinez estimated that 40% of Hispanics residing
in Harris County are ineligible to vote because they lick
citizenship. This uncomfortable fact did not deter Texas
Hispanic politicians from demanding more Hispanic Con-
gressional seats-even though  2 vote dilution claims are
ordinarily premised on measures of citizen voting age popu-
lation.
We decide this case based on the assumption, shared by
the parties, that for equal protection purposes, Hispanics
are Hispanics, whether citizens or not. We believe, however,
that in future cases, at the minimum, Hispanic plaintiffs
should have to prove that the citizen and non-citizen Hispanic
populations should be regarded as a cohesive ethnic group.
See, e.g., Shaw, 113 S. Ct. at 2830; Growe v. Emison, 113
S.Ct. 1075,1076 (1993).
---------------------------------------- Page Break ----------------------------------------
83a
Green to run for Congress in the "Hispanic" district.
As Representative Martinez testified, the borders of
District 29 became increasingly distended as he and
Senator Green fought to place their state constituents
within the new district. Finally, to the south, Con-
gressman Andrews desired to maintain as many
minority constituents as possible in his Democratic
district.
These two districts are so tortuously drawn that
an 81/211" map does not begin to show their block-by-
block district lines. See Appendix (Map of Districts
18 and 29). The districts literally meander from one
side of the street to the other and cross major
thoroughfares, like Shepherd Drive, numerous times.
To say that this configuration violates traditional
redistricting principles is an understatement. See
generally Pildes & Niemi, supra at 563-64, 567, 569
(concluding that Districts 18 and 29 among the most
noncompact in the nation) The magnitude of the vio-
lation becomes clear in light of the testimony of plain-
tiff Edward Blum, who campaigned for Congress in
the new District 18 in 1992. Blum and his wife spent
months walking the entire district in order to shake
hands with the voters. They had to carry a map to
identify the district lines, because so often the borders
would move from block to block. See 6/27/94 TR. at
20-21. Plaintiff Kenneth Powers who assisted Blum
in his campaign testified that voters were confused
and frustrated. They did not know why their district,
had been arbitrarily changed, and they did not know
the candidates running for office. See Dep. of Powers
at 43-44. The boundaries had become so complex that
the county clerk's office sent the wrong ballots to
certain precincts and erroneously counted those votes
within District 18. The total number of precincts in
---------------------------------------- Page Break ----------------------------------------
84a
Harris County nearly doubled following the 1990 re-
districting as a result of the complex new district
lines. 50.  See Plaintiff  Exh. 10. In Districts 18 and 29,
60%, of the residents live in split precincts after re-
districting, and in District 25, over 40% were so af-
fected. See Plaintiff Exh. 34Q.
The result of this line-drawing appears utterly ir-
rational-unless one factors in the overlap between
these district boundaries and the racial makeup of
their underlying populations. The goal of separating
Hispanic and African-American residents from each
other and from the white population for purposes of
voting led to the creation of these particular districts.
As in the case of District 30, the state posits that
the irregular boundaries of Districts 18 and 29 were
caused by the demand for incumbent protection rather
than racial considerations. We disagree. The essen-
tial goal in creating these districts was to segregate
Hispanics from African-Americans and both minori-
ties from whites in order to retain at least 50 % total
African-American population. in District 18 and
achieve at least 61 % a total Hispanic population in Dis-
trict 29. Then-State Representative Roman Martinez
clearly testified so in his deposition in this case where
he said it was particularly necessary to split VTD'S
in order to capture pockets of Hispanic residents for
the new district. 51.  He reiterated his insistence on hav-
___________________(footnotes)
50 Harris County created 553 new precincts, bringing its
total from 672 to 1225 for the county. See Plaintiffs Exh. 10.
51 During Dr. Weber's testimony at trial, the court asked
whether he had analyzed the portion of the split VDT's that
were excluded from the districts and compared those numbers
with the core of the district from which they were excluded.
See 7/1/94 TR. at 26-27. Dr. Weber indicated that he had not
---------------------------------------- Page Break ----------------------------------------
85a
ing at least 61% Hispanic population in that district..
Further, as we concluded in regard to District 30, the
goal of incumbent protection was itself realized by the
deliberate segregation of voters on the basis of race
in the Harris County metropolitan area. Incumbent
Democrats were fencing minorities into their districts
or into the new majority-minority districts, while
those same minorities were effectively being removed
from Republican incumbents' districts.
The defendants also contend that African-Ameri-
cans and Hispanics in Harris County belong to iden-
tifiable communities of interest that may be and were
recognized as such for districting purposes. This ar-
gument is troubling for the same reason noted in re-
gard to District 30. Although the issue of minority
cohesion is relevant to a  2 vote dilution claim, it is
another matter entirely, as we previously stated, for
a racial or ethnic group to claim an award of rep-
resentation based on race or ethnicity apart from
traditional districting criteria. Moreover, one must
question how citizen and non-citizen Hispanics com-
prise a community of interest many obvious socio-
logical issues, such as relative educational attainment;
competition for similar jobs, taxpayer versus non-tax-
___________________(footnotes)
performed this analysis but indicated that he had provided
the court with the necessary numbers and methodology.
The court has analyzed the racial composition of the split
VTD's in Harris County based on numbers provided by the
Texas Legislative Council and included in Dr. Weber's re-
port. In examining the number of individuals from VTD's
that were split in creating Districts 18 and 29, an overwhelm-
ing majority of those individuals placed in District 29 were
Hispanic while an overwhelming majority placed in District
18 were African-American. This analysis supports the infer-
ence that VTD's in Harris County were split for the central
purpose of achieving a certain raciaI composition.
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86a
payer status, and even linguistic differences were not
plumbed before this court. We conclude that what-
ever may be proven in other cases, Shaw does not per-
mit districting to be based on race or ethnicity in con-
ditions such as these, which violate traditional dis-
tricting criteria.
Finally, the defendants assert that because Districts
18 and 29 each include residents of similar socioeco-
nomic background and lie fully within Harris County,
they are sufficiently compact to pass muster. We dis-
agree. As all parties and their expert witnesses
agreed, compactness must be a relative measure for
Legislative districts. The Congressional Districts in
West Texas are compact even though they span hun-
dreds of square miles because they encompass all of
the population lying within a distinct, clearly defined
area. In a major urban county, compactness makes
little sense if considered in terms of geographic sprawl
alone, but it seems far more probative when viewed in
terms of a city's or county's neighborhoods, geopoliti-
cal subdivisions, and business location. Adjusting the
sense of compactness to the complexity and popula-
tion density of the urban landscape demonstrates that
Districts 18 and 29 are not compact at all. Their
contorted shapes are the antithesis of compactness.
Because Districts 18 and 29 are formed in utter
disregard for traditional redistricting criteria and be-
cause their shapes are ultimately unexplainable on
grounds other than the racial quotas established for
those districts, they are the product of unconstitu-
tional racial gerrymandering.
3. Narrow Tailoring to Achieve a Compelling
State Interest?
The defendants also contend strenuously that Dis-
ticts 18, 29, and 30, having been created in part to
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87a
satisfy the State's duties under the federal Voting
Rights Act, are for that reason justifiable under Shaw.
This is a subtle but significant misreading. A Shaw
claim for denial of equal protection is stated if the
state created bizarrely shaped districts for the pur-
pose of racially segregating voters who are geographi-
cally and otherwise dispersed according to traditional
districting criteria. But Shaw makes it plain that the
states's intention to comply with the Voting Rights
Act when it created such districts will not necessarily
save it constitutionally; the Voting Rights Act may
not be used to sanction the "racial apartheid" that
Shaw and the Fourteenth Amendment condemn.
Part IV of Shaw clearly holds, however, that com-
pliance with the Voting Rights Act might be a com-
pelling state interest that, if narrowly tailored, would
withstand the strict scrutiny demanded of racial
classifications under the Fourteenth Amendment.
Part IV of Shaw was written to refute Justice Sou-
ter's dissenting position that advocated less exacting
scrutiny of racial gerrymanders than is applied to
other types of discrimination under the Fourteenth
Amendment. See Shaw, 113 S. Ct. at 2830. The Shaw
majority rejected his contention. 52.  Part IV is peppered
with the language of compelling state interest as ap-
plied to the state's need to comply with the Voting
___________________(footnotes)
52 For this reason, we reject the argument of the United
States that "benign" race-conscious districting is subject to
intermediate rather than strict scrutiny. The United States
founds its position in part on Metro Broadcasting v. Federal
Communications Comm'n., 497 U.S. 547 (1990), which ap-
plied that standard to federal antidiscrimination measures.
We agree, however, with the Shaw remand court that Metro
Broadcasting has little to do with this case. See Shaw, NQ.
92-202-CIV-5-BR at n.22 (E.D.N.C. Aug. 1, 1994).
---------------------------------------- Page Break ----------------------------------------
88a
Rights Act. The difference between the State's inter-
pretation of Shaw and what Shaw really says lies in
the allocation of the burden of production. If, as the
defendants contend, Voting Rights Act concerns are
an "explanation" that justify bizarrely drawn racial
districts, the plaintiffs must prove as part of their
case that the districts did not comply with the Voting
Rights Act. Because, as we have concluded, the plain-
tiffs' burden of production extends solely to the race-
consciousness of the districts combined with the dis-
regard of traditional districting criteria, then the
State has the burden of producing evidence of nar-
rowly tailoring to achieve its compelling state interest..
Interestingly, Texas does not seriously argue that
Districts 18, 29, and 30 are "narrowly tailored" to
fulfill the State's obligations under the Voting Rights
Act and would thus withstand the strict scrutiny test.
Based on the evidence, this would have been nigh
impossible. The State admits that more traditional
districts could have been fashioned. At least two pro-
posed redistricting plans for Dallas-Senator John-
son's Plan C500 and Owens-Pate Plan 606-and two
for Houston-Owens-Pate Plan 606 and Dr. Web-
ber's Plan 676-included far more compact, contig-
uous majority-minority districts. Defendants con-
tend, however, that these districts probably would
have sacrificed one or two incumbent Congressmen,
but they cannot and do not contend that preserving
incumbents rests on the same compelling interest foot-
ing as compliance with the Voting Rights Act. Many
witnesses acknowledged that majority-minority dis-
tricts could have been created in Harris and Dallas
 counties with more respect for compactness, contigu-
ity, geography, and neighborhood preservation. See
Dep. of Johnson at 130-32, 142; 6/28/94 TR. at 2-
---------------------------------------- Page Break ----------------------------------------
89a
128-129. Under these circumstances, the State has
not carried its burden of production on the issue of
narrow tailoring.
In its post-trial brief, the United States adopts a
different position, contending not only that the State
had a compelling interest in complying with the Vot-
ing Rights Act but also that Districts 18, 29, and 30
are narrowly tailored to further that interest. 53.  It
is not obvious to this court that the State 54.  justifiably
___________________(footnotes)
53 The United States cites Richmond "v. J.A. Croson, 488. U.S.
"469, 498-500 (1989), for the proposition, reiterated in Shaw,
that a jurisdiction might enact "affirmative action redistrict-
ing" if it had a compelling interest in eradicating particular
instances of racial inequality. No evidence was presented
at trial to support this basis for minority districts, and we
will not consider it further.
54 As the State concedes, 5 of the Act, which implements
a racial nonretrogression principle in districting, only re-
quired the state to preserve extant "minority" Districts; it
did not require the creation of new minority Districts 29 and
SO. See Beer v. United States, 425 U.S. 130, 141 (1976).
The defendants also assert that if Districts 18, 29, and 30
had not been drawn as majority-minority districts, the State
would have been vulnerable to a vote dilution claim under
 2 of the Voting Rights Act. Further, the Attorney General,
exercising her responsibility under 5 of the Act, could have
refused to preclear the State's apportionment plan for this
reason. Section 2 vote dilution claims are proven by estab-
lishing the three `Gingles criteria" and then by showing
dilution under the totality of the circumstances surrounding
a districting scheme. See Thornburg v. Gingles, 478 U.S.
30 (1986). The first Gingles criterion is that the minority
population are sufficiently numerous and geographically com-
act to form a majority in a single-member district. See
Growe v. Emison, 113 S. Ct. 1075, 1084 (1993). This aspect
of Gingles, like Shaw, presupposes legislative districts that
have geographic integrity and satisfy traditional districting
standards. See, e.g., Johnson v. DeGrandy, 114 S.Ct. 2647,
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feared potential liability under  2 or 5 of the Vot-
ing Rights Act if it failed to protect District 18 and
set aside three new districts-Districts 28, 29, and
30-for minority Congressmen. Nevertheless, for this
and other reasons, the Legislature created the dis-
tricts. According to Shaw, this is permissible if the
districts are narrowly tailored to comply with Voting
Rights Act concerns. But Shaw cautions: "A reap-
___________________(footnotes)
2655 (1994). That test cannot be met under 2 for Districts
18, 29, and 30. Defendants' perfunctory and wholly unsup-
ported contentions to the contrary are incorrect. Also under-
mining the assertion of  2 violation is the recent Supreme
Court decision in Johnson v. DeGrandy, which holds that it
is not necessary for a political jurisdiction to maximize mi-
nority voting strength in order to comply with 2. See id.
at 2661. As the statute itself says," proportional representa-
tion is not its goal or mandate.
finally, Gingles requires proof that the majority usually
vote as a bloc to defeat the minority's preferred candidates.
In Texas in the 1990's, it is no longer accurate to assume
that this condition of Gingles exists in every case. Johnson v.
DeGrandy, supra, emphasizes a similar point: " [T] here are
communities in which minority citizens are able to form
coalitions with voters from other racial and ethnic groups,
having no need to be a majority within a single district in
order to elect candidates of their choice. Those candidates
may not represent perfection to every minority voter, but
minority voters are not immune from the obligation to pull,
haul and trade to find common political ground." Id.; see
also, LULAC v. Clements, supra., 999 F.2d 831 (5th Cir. 1993)
(en bane) (concluding minority judicial candidates defeated
not because of race but because of partisanship), cert. denied,
64 U.S.L.W. 3471 (1994). What amounts to a ritualistic in-
vocation of  2 by the defendants simply proves too much:
the possibility that some ~ 2 claim might have prevailed
against the state if HB1 had not contained more minority
districts than the base plan cannot justify these noncompact
noncontiguous districts.
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portinment plan would not be narrowly tailored to the
goal of avoiding retrogression if the State went be-
yond -what was reasonably necessary to avoid retro-
gression." Shaw, 113 S. Ct. at 2831. This caution,
we assume, would also apply to a 2 prophylactic
measure.
The United States' characterization of Districts 18,
29, and 30 as narrowly tailored runs afoul of this
caution. In the government's view, Texas could draw
these districts in just about any bizarre shape as long
as it attributed their shapes to incumbent protection
or another "non-racial" consideration. The United
States is also implicitly equating incumbent protection
with a compelling state interest, an utterly unjustifi-
able argument.
Because a Shaw claim embraces the district's
appearance as well as its racial construction, narrow
tailoring must take both these elements into account.
That is, to be narrowly tailored, a district must have
the least possible amount of irregularity in shape,
making allowances for traditional districting cri-
teria. 55.  The United States, by deferring heavily to
___________________(footnotes)
55 Regarding this aspect of narrow tailoring, we again
register disagreement with the two-judge majority that de-
cided Shaw on remand. Those judges conclude that the only
factors pertaining to the shape and size of a district that
bear on narrow tailoring are constitutional limits, i.e. com-
pliance with the one person/one vote principle and the right
of nonminorities not to have their votes diluted. To these
limits, however, must be added Shaw's emphasis on the re-
quirement that a racially constructed district must satisfy
other neutral districting criteria. The two-judge majority
simply ignored this point, as Judge Voorhees, dissenting,
observes.
The Shaw remand majority apparently concluded that the
shape of a "voting rights district" is immaterial as long as
the state had a sufficient basis upon which to believe it might
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92a
the state's choice of boundaries, commits narrow tail-
oring to an insignificant role and ignores the disposi-
tive fact that alternative plans for Districts 18, 29,
and 30 were all much more geographically and other-
___________________(footnotes)
be vulnerable to a 2 vote dilution claim. This conclusion
overlooks the Supreme Court's clear distinction between "what
the law permits, and what it requires." Shaw, 113 S. Ct. at
2830. Further, the Shaw remand majority describe as dicta
the Supreme Court's observation that the deliberate creation
of majority-minority districts to remedy past discrimination
was only constitutionally permissible beyond the framework
of the Voting Rights Act if the state employed sound dis-
tricting principles and if the racial group's residential pat-
terns permitted the creation of districts. Shaw, 113 S.Ct. at
2832 (citing United Jewish Organizations of Williamsburgh,
Inc. v. Carey, 430 U.S. 144, 167-68 (1977) (opinion of White,
J.) ). We believe these statements bear importantly on the
"fit" between the state's compelling interest in addressing
Voting Rights concern and the form of the districts that must
be narrowly tailored to suit them.
Finally, we note that under the reasoning of the Shaw
remand majority, a bizarrely shaped district that has no
grounding in traditional districting criteria was held "nar-
rowly tailored," although it is inconceivable that the same
district could have been authorized under 2 and the first
prong of the Gingles test. See note 54 supra
Among their reasons for discounting the significance of
compactness and contiguity for narrow tailoring, the Shaw
remand majority denigrate the importance of those factors
and issue an expression of judicial restraint that is, frankly,
hard to swallow. We have already defended objective dis-
tricting criteria. Supra at n.43. Moreover, judges are rou-
tinely deciding nontraditional questions in  2 vote dilution
cases, among which are the possibility to create "compact and
contiguous" minority-majority districts. The likelihood of
judicial intrusion upon the state's prerogative of districting
is the same in both cases. When a 2 or Shaw violation is
found, of course, judges must defer as far as possible to the
legislature's attempt to solve the problem. See Upham v.
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93a
wise "logical than the Swiss cheese plans chosen by
the state. Where obvious alternatives to a racially
offensive districting scheme exist, the bizzare districts
are not narrowly tailored. 56.
From the foregoing discussion, we conclude that
Districts 18, 29, and 30 are the product of unconsti-
tutional gerrymandering and that they are not nar-
rowly tailored to further the State's concern about
compliance with the Voting Rights Act.
4. Congressional District 28
There is markedly less evidence in the record con-
cerning the creation of Congressional District 28, a
designedly Hispanic district located in the South
Texas area. South Texas experienced a dramatic
___________________(footnotes)
Seamon, 456 U.S. 37, 40-41 (1982). Thus, we believe the
Shaw remand majority search in vain for policies to support
their decision.
56 Courts confronted with the question whether a remedial
racial classification is narrowly tailored to serve its purpose
have considered a number of factors to be important. These
factors include: (1) the efficacy of alternative race-neutral
measures; (2) the efficacy of alternative, more narrowly-
tailored racial classifications; (3) the flexibility and duration
of the remedy; and (4) the impact of the remedy on the
rights of third parties. See, e.g., United States v. Paradise,
480 U.S. 149, 171 (1987); Local 28, Sheet Metal Workers v.
EEOC, 478 U.S. 421, 481 (1986) (Powell, J., concurring);
Fullilove, supra, 448 U.S. at 510-11 (Powell, J., concurring);
see also Rauitch v. City of New York, 1992 WL 196735 at
*7 (applying these factors to a racial classification used in
redistricting); Hays II.
Because we have concluded that Districts 18, 29 and. 30
are not narrowly tailored to reflect, as far as possible, tra-
ditional districting criteria, we need not discuss these factors
in detail. Our conclusion bears on the first, second, and fourth
factors.
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94a
growth in population, largely of Hispanic origin, dur-
ing the 1980's, and it was foreseeable that a new
Congressional district would be located there. Based
on the majority-Hispanic population throughout much
of South Texas, it is also not surprising that the new
district would have an Hispanic majority. Then-
Senator Tejeda influenced the drawing of district
lines so that as much of his Bexar County constitu-
ency as possible would fall within the district, but its
progression south from Bexar County is similar to
the configuration of the other Congressional districts
in South Texas. When compared with the other dis-
tricts in Texas, Congressional District 28 is not
highly irregularly shaped. Its fingers do jut into the
small cities of Seguin and New Braunfels. In so do-
ing, according to the plaintiffs' maps indicating
county racial composition, the district excises the
minority, largely Hispanic populations from those
cities. The number of voters affected by these exten-
sions is small compared to the size of the district,.
The Legislature took no extraordinary measures that
render this district so out of line with traditional
districting criteria as to raise a serious question
about racial gerrymandering.
B. Other Congressional Districts
Plaintiffs attack most of the other Congressional
districts in the State of Texas as having produced
deliberate racial segregation of voters to subserve
the goal of incumbent protection. As we noted be-
fore, there is an extremely high correlation between
the irregular features of many of these districts and
the racial populations they are drawn to include or
exclude. See III.C.8. supra. At trial, Chris Sharman
generally explained away these divisions by saying
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95a
that the incumbent Congressmen were seeking to
corral "Democrats" into their districts. More candid
testimony was provided by Congresswoman Eddie
Bernice Johnson during the Terrazas ease, which
preceded the issuance of the Supreme Court's decision
in Shaw v. Reno. In Terrazas, then-Senator Johnson
stated that African-American voters from many of
these towns had requested to be placed within dis-
tricts of Democrat Congressmen. We conclude that
both race and politics influenced the divisions of these
towns between Congressional districts.
It does not follow, however that racial gerry-
mandering occurred. First, with few exceptions, the
outlines of the non-Voting Rights Congressional dis-
tricts within the state (except those which are con-
tiguous to the districts we have already found un-
constitutional ), are fairly regular or at least not
highly irregular apart from the small racially dis-
tinct appendages. Second, in deciding whether voters
have been segregated by race, the frame of reference
must be considered. It is true that voters within
individual cities or counties were often separated
along racial lines into the districts of incumbent
Republican or Democrat Congressmen. From the
standpoint of those districts, however, the addition or
subtraction of these minority populations was not
proportionately significant; they also gave the Con-
gressmen a toe-hold in such cities and effectively
doubled the cities' representation in Congress. Fur-
ther, we cannot say that from the perspective of the
districts, there was unconstitutional racial gerry-
mandering.
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96a
V. CONCLUSION
Shaw explained the nature of a racial gerryman-
dering claim under the Fourteenth Amendment.
Utilizing, Shaw's precepts, the court has carefully
analyzed all of the voluminous evidence produced by
the parties and investigated 24 of Texas' Congres-
sional Districts. Although the State indisputably
used racial data in the process of Congressional re-
apportionment throughout the state, and it used the
data with sophistication and precision, we conclude
that only three Congressional Districts were uncon-
stitutionally racially gerrymandered. Districts 18,
29, and 30 were all designed with highly irregular
boundaries that take no heed of traditional district-
ing criteria; those districts function primarily to in-
clude sufficient numbers of the favored minority
groups and to exclude the disfavored groups so as to
assure election of one of the favored groups' mem-
bers. If these districts-tortuously constructed block-
by-block and from one side of the street to another
across entire counties to satisfy the desired racial
goal-are constitutional, then the State could more
easily hand each voter a racial identification card
and allow him to participate in racially separate elec-
tions. The exclusively racial makeup of these dis-
tricts harks back to the infamous "white primary,"
which was constitutionally condemned decades ago.
Surely districts as race-specific as Districts 18, 29,
and 30 have no place in our system of government.
Moreover, Districts 18, 29, and 30 were not nar-
rowly tailored to fulfill the State's compelling interest
in avoiding liability under  2 or 5 of the federal
Voting Rights Act.
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97a
Based on the foregoing the court hereby
ORDERS that Districts 18, 29, and 30 as enacted
in HB1 in 1991 are declared unconstitutional under
the Fourteenth Amendment. Further relief, consist-
ent with this opinion, will be considered upon written
submission by the parties on or before August 26,
1994. 57.
SIGNED at Houston, Texas, on this 17th day of
August 1994.
/s/ Edith H. Jones
EDITH H. JONES
United States Circuit Judge
/s/ David Hittner
DAVID HITTNER
United States District Judge
/s/ Melinda Harmon
MELINDA HARMON
United States District Judge
___________________(footnotes)
57 This court reserves the right to amend this opinion up
until September 1, 1994.
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98a
HITTNER, District Judge, specially concurring:
I join fully with my colleagues in the unanimous
opinion herein and specially concur to highlight an
area which has the potential to evolve into a signifi-
cant issue in future instances of redistricting.
The plaintiffs in this case did not challenge House
Bill 1 1.  on the basis of religious gerrymandering;
however, testimony adduced at trial definitely indi-
cated that religion did play a role in the crest ion of
the Dallas County Congressional Districts.
Although religion, has not been the central focus of
redistricting litigation, the cases that have addressed
the issue have repeatedly noted that using religion to
create congressional districts may be as violative of
the Fourteenth Amendment as racial considerations. 2. 
It is certainly foreseeable that voting districts could
be designed to exclude or include certain religious
groups considered necessary to win an election if
political candidates can create districts to assure elec-
toral success rationalized as "incumbency protection"
without regard for traditional districting principles.
___________________(footnotes)
1 House Bill 1, the challenged plan, was passed by the sec-
ond called session of the 72nd Texas Legislature and signed
into law by the governor on August 29, 1991.
2 The principle of equality is at war with the notion that
District A must be represented by a Negro, as it is with
the notion that District B must be represented by a
Caucasian, District C by a Jew, District D by a Catholic,
and soon... That system, by whatever name it is called,
is a divisive force in the community, emphasizing dif-
ferences between candidates and voters that are irrele-
vant in the constitutional sense.
Shaw v. Reno, 113 S. Ct. 2816, 2827 (1993) (quoting Justice
Douglas' dissenting opinion in Wright v. Rockefeller, 376
U.S.. 52, 66-67 (1964)).
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99a
In the instant case, the State of Texas attempted
to legitimize the oddly configured Dallas congres-
sional districts by partially attributing their contours
to religious considerations, rather than solely to ra-
cial factors. One of the State's witnesses, Chris
Sharman, testified that Congressman Martin Frost
wanted to exclude certain rural areas from his con-
gressional district that he believed would be adverse
to him because he is Jewish. See 6/29/94 TR.
3-206-09. This type of redistricting practice is an-
other example of what the unanimous opinion char-
acterizes as the representatives selecting the people
rather than the people selecting their representatives
through the balkanization of those groups who may
either support or oppose them. 3.  This specific practice
offends the principle of a democratic election process
whereby representatives are elected by their constitu-
ents because they are the most qualified candidate
rather than because they are members (or not mem-
bers) of particular religious affiliations.
The idea that race or ethnicity, or language or
religion might become the basis for distributing
___________________(footnotes)
3 In United Jewish Organization v. Carey, 430 U.S. 144,
185-86 (1977), Justice Stewart, concurring in the judgment
wrote that:
Although reference to racial composition of a political
unit may, under certain circumstances, serve as `a start-
ing point in the process of shaping a remedy' . . . rigid
adherence to quotas, especially in a case like this, de-
prives citizens . . . the opportunity to have the legislature
make a determination free from unnecessary bias for or
against any racial, ethnic, or religious group.
Justice Stewart further added that "mathematical formulas
and quotas in districts sustain ghettos by marshaling re-
ligious groups into enclaves." (Stewart, J., concurring).
---------------------------------------- Page Break ----------------------------------------
100a
voters during. the periodic redistricting process
runs counter to our professed belief in the `one-
ness' of American political life and to the belief
in Democracy itself with its emphasis on the in-
dividual citizen. `There is no one coherent polit
ical philosophy, political principle, or political
program subsumed under such group labels as
'black citizens,' `white citizens,' `Asian citizens,'
or `Hispanic citizens.'"
Turner v. Arkansas, 784 F.Supp. 553, 563 (E.D.
Ark 1991) .
Further, evidence in this case indicates that Con-
gressional District 30 extends to the northern part of
Dallas County specifically to include the Jewish Com-
munity Center and surrounding Jewish neighbor-
hoods. Congresswoman Eddie Bernice Johnson ex-
pressly wanted the Dallas Jewish Community Center
included in Congressional District 30. See Dep. of
Weiser at 144-48; "6/29/94 TR. 3-190-92. The State's
exhibit 53 a districting map promulgated by the State
of Texas Attorney General's Office, depicts Congres-
sional District 30, and parts of Congressional Dis-
tricts 3, 5, 6, 12, 24, and 26, in Denton, Collin, Rock-
wall, Kaufman, Tarrant and Dallas Counties. This
exhibit, entered into evidence by the State, expressly
designates the "Dallas Jewish Community Center" in
bold, red capital letters, with an arrow extending
into a portion of Congressional District 30 wherein
the Jewish religious symbol-the Star of David-
prominently appears on the districting map; that is
the only such designation on this entire exhibit aside
from official district and county identifications. John-
son believed that not only did she have the support
of members of the Dallas Jewish community but
that, in the event that another African-American
---------------------------------------- Page Break ----------------------------------------
101a
candidate ran against her, she would have the sup-
port of white, Jewish voters. See Dep. of Weiser at
112, 144-48 ; 6/29/94 TR. 3-190-92.
With future sophisticated advances in computer
technology, legislators no doubt may also be able to
determine the religious affiliation of households. This
practice of custom-building districts, by hand picking
which groups, including religious groups, should be
included in or excluded from a district, directly im-
plicates equal protection principles.
SIGNED at Houston, Texas, on this 17th day of
August, 1994.
/s/ David Hittner
DAVID HITTNER
United States District Judge
---------------------------------------- Page Break ----------------------------------------
 102a
APPENDIX
TEXAS CONGRESSIONAL DISTRICT 18
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103a
TEXAS CONGRESSIONAL DISTRICT 29
---------------------------------------- Page Break ----------------------------------------
104a
TEXAS CONGRESSIONAL DISTRICT 30
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105a
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
    HOUSTON DIVISION
C.A. No. H-94-0277
AL VERA, ET AL., PLAINTIFFS
v.
ANN RICHARDS, ET AL., DEFENDANTS
v.
REV. WILLIAM LAWSON, ET AL.,
     DEFENDANT-INTERVENORS
v.
UNITED STATES OF AMERICA,
     DEFENDANT-INTERVENOR
LEAGUE OF UNITED LATIN AMERICAN CITIZENS
    (LULAC) OF TEXAS, ET AL.,
     DEFENDANT-INTERVENORS
[Filed Sep. 2, 1994]
ORDER
This court has carefully reviewed the briefs and
submissions of parties pertaining to the question of
relief from the unconstitutional Congressional dis-
tricts created by the state of Texas, and, based upon
---------------------------------------- Page Break ----------------------------------------
106a
the applicable law and the facts as represented to this
court, it is hereby:
ORDERED
1. That the fall 1994 Congressional elections for
the state of Texas shall proceed according to the dis-
tricts created by the 1991 plan C657;
2. that the Texas legislature shall develop on or
before March 15,1995, a new Congressional redistrict-
ing plan in conformity with this court's previous opin-
ion during the 1995 regular legislative session that
convenes on January 10, 1995;
3. that on or shortly after March 15, 1995, this
court will hold a remedial hearing on the status of
the legislature's redistricting efforts;
4. that plaintiffs shall submit their application for
attorneys fees and costs within 30 days of the date
hereof; and
5. that all other relief sought by the parties in
their post-trial submissions on relief is denied.
SIGNED at Houston, Texas, on this the 2nd day
of September, 1994.
/s/ Edith H. Jones
EDITH H. JONES
United States Circuit Judge
/s/ David Hittner
DAVID HITTNER
United States District Judge
/s/ Melinda Harmon
MELINDA HARMON
United States District Judge
---------------------------------------- Page Break ----------------------------------------
107a
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
    HOUSTON DIVISION
C.A. No. H-94-0277
AL VERA, ET AL, PLAINTIFFS
v.
ANN RICHARDS, ET AL, DEFENDANTS
v.
REV. WILLIAM LAWSON, ET AL.,
DEFENDANT-INTERVENORS
v.
UNITED STATES OF AMERICA,
DEFENDANT-INTERVENOR
LEAGUE OF UNITED LATIN AMERICAN CITIZENS
   (LULAC) OF TEXAS, ET AL.,
   DEFENDANT-lNTERVENORS
[Filed Sep. 20, 1994]
AMENDED ORDER
This court has considered the state's Unopposed,
Emergency Motion for Expedited Entry of Explicit
Injunction, and, finding it well-grounded, it is hereby:
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108a
ORDERED that the state's Unopposed, Emergency
Motion for Expedited Entry of Explicit Injunction is
GRANTED; it is further ordered that:
The Court's Order entered September 2, 1994, is
hereby amended nunc pro tune to provide as addi-
tional relief that the state defendants, their officers
and assigns, and all those in active concert or partici-
pation with them are hereby enjoined from conduct-
ing (including opening candidate qualifying) the 1996
Congressional elections for the state of Texas accord-
ing to the districts created by the 1991 plan C657.
SIGNED in Houston, Texas, on this the 19 day of
September, 1994.
/s/ Edith H. Jones
EDITH H. JONES
United States Circuit Judge
/s/ David Hittner
DAVID HITTNER
United States District Judge
/s/ Melinda Harmon
MELINDA HARMON
United States District Judge
---------------------------------------- Page Break ----------------------------------------
109a
APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
    HOUSTON DIVISION
C.A. No. H-94-0277
AL VERA, ET AL., PLAINTIFFS
v.
ANN RICHARDS, ET AL., DEFENDANTS
v.
REV. WILLIAM LAWSON, ET AL.,
  DEFENDANT-INTERVENORS
v.
UNITED STATES OF AMERICA,
DEFENDANT-INTERVENOR
v.
LEAGUE OF UNITED LATIN AMERICAN CITIZENS
   (LULAC) OF TEXAS, ET AL.,
    DEFENDANT-INTERVENORS
[Filed Oct. 3, 1994]
UNITED STATES' NOTICE OF APPEAL
Pursuant to 28 U.S.C. 1253, the defendant-inter-
venor United States hereby appeals to the Supreme
Court of the United States this Court's September 2,
---------------------------------------- Page Break ----------------------------------------
110a
1994 order and September 19, 1994 order nunc pro
tunc granting declaratory and injunctive relief.
        
Respectfully submitted,
        
DEVAL L. PATRICK
Assistant Attorney General
GAYNELLE GRIFFIN JONES
United States Attorney
/s/ Robert A. Kengle
JOHN K. TANNER
GAYE L. HUME,
  attorney in charge
ROBERT A. KENGLE
RICHARD B. JEROME
TODD A. COX
Attorneys, Voting Section
Civil Rights Division
Department of Justice
P.O. BOX 66128
Washington, D.C. 20035-6128
(202) 514-6196
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111a
APPENDIX E
Section 2 of the Voting Rights Act of 1965, 42
U.S.C. 1973, provides:
  
(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 de-
nial or abridgement of the right of any citizen of
the United States to vote on account of race or
color, or in contravention of the guarantees set
forth in section 1973b (f ) (2) of this title, as pro-
vided in subsection (b) of this section.
(b) A violation of subsection (a) of this sec-
tion is established if, based on the totality of
circumstances, it is shown that the political proc-
esses 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 noth-
ing in this section establishes a right to have
members of a protected class elected in numbers
equal to their proportion in the population.
Section 5 of the Voting Rights Act, 42 U.S.C.
1973c provides:
  
Whenever a State or political subdivision with
respect to which the prohibitions set forth in sec-
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112a
tion 1973b (a) of this title based upon determina-
tions made under the first sentence of section
1973b (b) of this title are in effect shall enact
or seek to administer any voting qualification or
prerequisite to voting, or standard, practice, or
procedure with respect to voting different from
that in force or effect on November 1, 1964, or
whenever a State or political subdivision with
respect to which the prohibitions set forth in
section 1973b (a) of this title based upon deter-
minations made under the second sentence of
section 1973b(b) of this title are in effect shall
enact or seek to administer any voting qualifica-
tion or prerequisite to voting, or standard, prac-
tice, or procedure with respect to voting different
from that in force or effect on November 1,
1968, or whenever a State or political subdivision
with respect to which the prohibitions set forth
in section 1973b (a) of this title based upon de-
terminations made under the third sentence of
section 1973b (b) of this title are in effect shall
enact or seek to administer any voting qualifica-
tion or prerequisite to voting, or standard, prac-
tice, or procedure with respect to voting differ-
ent from that in force or effect on November 1,
1972, such Stale or subdivision may institute an
action in the United States District Court for
the District of Columbia for a declaratory judg-
ment that such qualification, prerequisite, stand-
ard, practice, or procedure does not have the
purpose and will not have the effect of denying
or abridging the right to vote on account of race
or color, or in contravention of the guarantees
set forth in section 1973b (f ) (2) of this title,
and unless and until the court enters such judg-
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113a
ment no person shall be denied the right to vote
for failure to comply with such qualification,
prerequisite, standard, practice, or procedure:
Provided, That such qualification, prerequisite,
standard, practice, or procedure may be enforced
without such proceeding if the qualification, pre-
requisite, standard, practice, or procedure has
been submitted by the chief legal officer or other
appropriate official of such State or subdivision
to the Attorney General and the Attorney Gen-
eral has not interposed an objection within sixty
days after such submission, or upon good cause
shown, to facilitate an expedited approval within
sixty days after such submission, the Attorney
General has affirmatively indicated that such
objection will not be made. Neither an affirma-
tive indication by the Attorney General that no
objection will be made, nor the Attorney Gen-
eral's failure to object, nor a declaratory judg-
ment entered under this section shall bar a sub-
sequent action to enjoin enforcement of such
qualification, prerequisite, standard, practice, or
procedure. In the event the Attorney General
affirmatively indicates that no objection will be
made within the sixty-day period following re-
ceipt of a submission, the Attorney General may
reserve the right to reexamine the submission
if additional information comes to his attention
during the remainder of the sixty-day period
which would otherwise require objection in ac-
cordance with this section. Any action under
this section shall be heard and determined by a
court of three judges in accordance with the pro-
visions of section 2284 of title 28 and any appeal
shall lie to the Supreme Court.
U.S. GOVERNMENT PRINTING OFFICE; 1994 387147 20012