Perez v. Abbott (250 F. Supp. 3d 123, 2017)

ORDER ON PLAN H283

XAVIER RODRIGUEZ, District Judge and ORLANDO L. GARCIA, District Judge:

This Order addresses Plaintiffs’ claims concerning Plan H283, enacted by the 82nd Legislature in 2011. Plaintiffs assert “results” claims under § 2 of the Voting Rights Act (“VRA”), intentional vote dilution claims under § 2 of the VRA and the Fourteenth Amendment, and Shaw-type racial gerrymandering claims under the Equal Protection Clause of the Fourteenth Amendment. The Perez, LULAC, and MALC Plaintiffs also assert one person, one vote claims under the Equal Protection Clause of the Fourteenth Amendment based on population deviations among the districts. This opinion is intended to be read in conjunction with the Court’s fact findings, which are issued separately, as well as the Court’s opinion on Plan C185 (docket no. 1339).

I. YRA § 2 results claims generally

The Task Force, NAACP Plaintiffs, and MALC assert § 2 results claims on the basis that Texas could have enacted a plan with more minority opportunity districts (both single-minority and coalition) than were contained in Plan H283 and that enacting a plan with such additional districts was required by the § 2 results test. In their Fourth Amended Complaint, the Task Force Plaintiffs allege that “Plan H283 fails to create at least three additional Latino-majority House districts that afford Latinos the opportunity to elect their preferred candidate.” Docket no. 891 ¶ 37; see also id. ¶ 68 (“The Latino population of Texas is sufficiently geographically compact to comprise the majority of citizen voting age persons in at least 33 Texas House districts.”). They also assert so-called “nudge factor” claims against two HCVAP-majority districts in Plan H283, HD117 in Bexar County and HD78 in El Paso. Docket no. 1282 at 4-5.

The Task Force Plaintiffs contend that “Latinos are sufficiently numerous and compact to comprise the citizen voting age majority in more districts than contained in Plan H283, including in Harris County, Nueces County, and the Rio Grande Valley.” Docket no. 1282 at 4. However, somewhat inconsistently, they offer Plan H292 as a demonstration plan, asserting that it has 34 Latino opportunity districts, created by restoring- HD33 in Nueces County, “balancing” the Latino population in Bexar County to restore HD117, “balancing” the Latino population in El Paso to add HD78, and adding a Latino opportunity district in the Rio Grande Valley by combining population overages from Cameron and Hidalgo Counties to capture the “organic” district that grew in the Valley. Docket no. 1282 at 6; docket no. 444 at 20. Defendants correctly note that “only 32 districts exceed 50% HCVAP or SSVR” in Plan H292. Docket no. 468 at 19.

The NAACP’s Third Amended Complaint alleges that the Texas Legislative Black Caucus introduced a plan with four additional African-American opportunity districts (Plan H202), and alleges a § 2 results claim. Docket no. 900 ¶¶ 22, 58; see also docket no. 406 at 30 (arguing that four additional minority opportunity districts could have been drawn compared to the enacted plan).

MALO also asserts § 2 results claims and contends that up to six additional minority opportunity districts were required. Docket no, 897 ¶¶ 74-75; docket no, 412 at 16-18. MALO has offered numerous demonstration maps, including statewide Plans H201, H205, H295, and H329, and various limited plans for certain geographic areas.

“When applied to a claim that single-member districts dilute minority votes, the first Gingles condition requires the possibility of creating more than the existing number of reasonably compact districts with a sufficiently large minority population to elect candidates of its choice.” Johnson v. De Grandy, 512 U.S. 997, 1008, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994). Generally, to evaluate this claim, it must be determined how many “reasonably compact districts with a sufficiently large minority population to elect candidates of its choice” exist in Plan H283, and whether Plaintiffs have demonstrated' that more were required, which is usually done through presentation of demonstration plans. LULAC v. Perry, 548 U.S. 399, 430, 126 S.Ct. 2594, 165 L.Ed.2d 609 (2006) (“De Grandy requires a comparison between a challenger’s proposal and the ‘existing number of reasonably compact districts.’”). Because Plaintiffs are alleging § 2 claims based on the number of opportunity districts statewide, analysis of the claims should involve a comparison between the number of opportunity districts in the enacted plan (Plan H283) and a Gingles demonstration plan proposed by Plaintiffs. While normally this would be a straightforward task, it is not in this case.

This task is made complicated by numerous factors, including that: (1) it remains unclear whether the Perez Plaintiffs are asserting §.2 results claims despite offering statewide demonstration Plan H232 and several limited-area demonstration plans;. (2) the parties (including the Plaintiffs among themselves) disagree concerning which districts in the enacted plan are opportunity districts; (3) even single Plaintiffs present conflicting assertions concerning which districts they are alleging to be additional opportunity districts; (4) some Plaintiffs fail to clearly set out specifically all the districts they contend are opportunity districts either in the enacted plan or their demonstration plan (or both), asserting only that more could have been drawn; (5) Plaintiffs and Defendants disagree on how to determine whether a district is a minority opportunity district and both incorrectly assert that districts with less than 50% minority CVAP are opportunity districts in some instances; (6) many of Plaintiffs’ experts reports and analyses focus on VAP instead of CVAP; and (7)' certain demonstration plans contain 25 districts in Harris County, compared to 24 in Plan H283, making comparisons outside of drop-in counties more difficult.

The Court finds that certain of the § 2 results claims ,are moot, given the Legislature’s adoption of the interim plan, with slight modifications, in 2013. Plan H309 and Plan H368 resolved some of the § 2 results claims, and no § 3(c) relief would be available based on any proven violations of the § 2 results claims. Given these facts, as well as the complicating factors listed above, the Court concludes that it would be a waste of the Court’s resources to delve into significant detail into all of the § 2 results claims with regard to Plan H283. Instead, because the Legislature adopted a new plan in 2013, the parties will be permitted to bring their § 2 results claims concerning the 2013 plan based on more recent ACS data. However, the Court will offer some analysis of the 2011 plan §' 2 results claims to give preliminary guidance to the parties for the 2013 plan trial and as necessary where the claims relate to the Plaintiffs’ intentional vote dilution claims.

A. How to measure opportunity districts

For both the enacted plan and Plaintiffs’ demonstration districts, Defendants contend that opportunity districts are measured solely on demographics. For the enacted plan, Plaintiffs contend that they are determined by demographics coupled with a functional analysis including election analysis. Some Plaintiffs (such as the Task Force Plaintiffs) also apply a functional analysis to their proposed demonstration districts, though some Plaintiffs (MALC and the NAACP) appear to rely more on meeting the demographic threshold for demonstration districts,

Some Plaintiffs challenge specific majority-HCVAP districts as not providing real electoral opportunity and not being Latino opportunity districts—specifically, the Task Force Plaintiffs challenge HD78 in El Paso and HD117 in Bexar County- under § 2 for both results and intent, and the United States contends that HD35 and HD41 are not opportunity districts as part of its intentional vote dilution claims. As this Court held in its congressional plan opinion, Plaintiffs may bring results claims against a particular district despite its majority-HCVAP status; the fact that a district is majority-HCVAP does not, standing alone, qualify it as a Latino opportunity district, and Plaintiffs may attempt to prove that it lacks “real electoral opportunity.” Similarly, as discussed in the congressional plan opinion, the Court views exogenous election indices in enacted districts as probative evidence of whether a district is an opportunity district, but declines to measure whether a district is an opportunity district based solely on a 50% win standard on such indices. Rather, the Court conducts a practical, searching inquiry based on the totality of circumstances and the particular facts of the case to determine whether any particular district is an opportunity district for § 2 purposes.

In their 2011 proposed Fact Findings and Conclusions of Law, Defendants assert that Plan H283 contains 30 Latino opportunity districts and 12 African-American opportunity districts. Docket no. 413 FF93, 94. Defendants’ count of Latino opportunity districts is based solely on the number of districts with 50% or more HCVAP from the Red-106 Report. Docket no. 413 FF93. As discussed, a 50% HCVAP district is theoretically an opportunity district, but it may still be challenged by Plaintiffs as not providing real electoral opportunity.

Although Defendants’ fact findings also cite the Red-106 report (the ACS Special Tabulation of CVAP) as support for the number of African-American opportunity districts, the Appendix to the post-trial brief states that Defendants’ criterion for African-American opportunity districts is 40% BVAP. Docket no. 411 Appendix at Table 5 n.l. Using the 40% BVAP criteria, Defendants list the following as “African-American districts”: HD22, HD27, HD95, HD100, HD109, HD110, HD111, HD131, HD139, HD141, HD142, and HD146. Docket no. 411 Appendix. Defendants claim that no proposed map creates more African-American districts using the 40% BVAP criterion. Defendants’ use of 40% BVAP appears to be based on the position taken by mapdraw-ers and redistricters, despite the fact that Defendants agree that Supreme Court case law has established a majority (over 50%) requirement for minority opportunity districts under § 2. The Court thus finds Defendants’ reliance on a 40% BVAP threshold for African-American opportunity districts to be erroneous. Rather, for single-minority opportunity districts, the standard for a minority opportunity district is majority CVAP for the particular minority group.

B. Whether § 2 can require coalition districts

Defendants further contend that minority coalition districts are never required or protected by § 2, and thus they do not count them in any of their analyses. However, Plaintiffs assert that coalition districts can be required and propose certain coalition districts in their Gingles demonstration plans. The Court agrees with Plaintiffs that § 2 can require the creation of minority coalition districts.

The Court in Gingles “ha[d] no occasion to consider whether § 2 permits, and if it does, what standards should pertain to, a claim brought by a minority group, that is not sufficiently large and compact to constitute a majority in a single-member district.” Thornburg v. Gingles, 478 U.S. 30, 46 n.12, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). Several cases presented this issue after Gingles, but the Supreme Court declined to address the issue and resolved the cases on other grounds.

In Growe v. Emison, 507 U.S. 25, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993), the district in question was composed of minority voters from three different minority groups, including Native Americans. The Supreme Court noted that “Gingles expressly declined to resolve whether, when a plaintiff alleges that a voting practice or procedure impairs a minority’s ability to influence, rather than alter, election results, a showing of geographical compactness of a minority group not sufficiently large to constitute a majority will suffice. We do not reach that question in the present case either.” Id. at 41, 113 S.Ct. 1075 n.5 (citations omitted). Again, in Johnson v. De Grandy, 512 U.S. 997, 1009, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994), the Supreme Court stated, “As in the past, we will .assume without deciding that even if Hispanics are not an absolute majority of the relevant population in the additional districts, the first. Gingles condition has been satisfied in these cases.”

In LULAC v. Perry, 548 U.S. 399, 443, 126 S.Ct. 2594, 165 L.Ed.2d 609 (2006), the Court, as it had “done several times before,” assumed without deciding “that it is possible to state a § 2 claim for a racial group that makes up less than 50% of the population.” Id. at 443, 126 S.Ct. 2594 (Kennedy, J., writing for a plurality). However,' Justice Souter opined that it was time to recognize that “the integrity of the minority voting population in a coalition district should be protected much as a majority-minority bloc would be.” Id. at 485, 126 S.Ct. 2594 (Souter, J., concurring in part and dissenting in part).

The Supreme Court did address the issue of crossover districts in Bartlett v. Strickland, 556 U.S. 1, 129 S.Ct. 1231, 173 L.Ed.2d 173 (2009) (plurality opinion).- In Strickland, .state house district 18 had been majority minority, but the African American voting age population had fallen below 50%, and it was no longer possible to draw a geographically compact majority-minority district. Id. at 8, 129 S.Ct. 1231. The North Carolina legislature -split a county in an effort to give “African-American voters the potential to join with majority voters to elect the minority group’s candidate of choice.” Id. Thus, the following question was posed to the Court: “In a district that is not-a majority-minority district, if a racial minority could elect its candidate of choice with support from crossover majority voters, ‘can § 2 require the district to be drawn to accommodate this potential?” Id. at 6, 129 S.Ct. 1231. Justice Kennedy acknowledged that it had “declined to decide the minimum size minority group necessary to satisfy the first [Gingles] requirement ... - .[but] [w]e must consider the minimum-size question in this case.” Id. at 12, 129 S.Ct. 1231 (Kennedy, J.). The plurality made clear at the outset that it was only addressing the issue as it pertains to crossover districts; it was not addressing coalition districts.. As Justice Kennedy explained:

In majority-minority districts, a minority group composes a numerical, working majority of the voting-age population. Under present doctrine, § .2 can require the creation of these districts. At the other end of the spectrum are influence districts, in which a minority group can influence the outcome of an election even if its preferred candidate cannot be elected. This Court has held that § 2 does,not require the creation of influence districts.

The present case involves an intermediate type of district—a so-called crossover district. Like an influence district, a crossover district is one in which minority voters make up less than a majority of the voting-age population. But in a crossover district, the minority population, at least potentially, is large enough to elect the candidate of its choice with help from voters who are members of the majority and who cross over to support the minority’s preferred candidate. .This Court -has referred sometimes to crossover districts as “coalitional” districts, in recognition of the necessary coalition between minority and crossover majority voters. But that term risks confusion with coalition-district claims in which two minority groups form a coalition to elect the candidate of the coalition’s choice. We do not address that type of coalition district here. ,,

Id. at 13-14 (citations omitted).

After considering the ' parties’ arguments, the Court held that crossover districts are not protected under § 2.- Id. at 14-15, 129 S.Ct. 1231. However, the scope of the ruling was clarified in several ways. First, the ruling did not apply to coalition districts, as the Court was not addressing that issue. Id. at 13-14, 129 S.Ct. 1231. The Court also made clear that “[o]ur holding does not apply to cases in which there is intentional discrimination against a racial minority,” and “if there were a showing that a State intentionally drew district lines in order to destroy otherwise effective crossover districts, that would raise serious questions under both the Fourteenth and Fifteenth Amendments.” Id. at 20, 24, 129 S.Ct. 1231. The Court stated, “Our holding that § 2 does not require crossover districts does not consider the permissibility of such districts as a matter of legislative choice or' discretion.” Id. at 23, 129 S.Ct. 1231. White legislatures have a choice to draw such districts, § 2 “does not mandate creating or preserving crossover districts.” Id.

Although the Strickland decision may provide some guidance on crossover districts, the Supreme Court has not yet addressed coalition districts—those electoral districts in which two or more minority groups form a coalition to elect the candidate of their choice. White each minority group individually may not be able to meet the first Gingles precondition, they may be able to meet the criteria when combined as a coalition. Coalition districts are different from crossover districts, in which minorities require the help of white crossover voters to elect their candidate of choice. Minority voters in coalition districts do not rely on white crossover votes in order to elect the minorities’ candidate of choice.

Again, the Court in Strickland clearly stated that it was not addressing coalition districts. Id. at 13-14, 129 S.Ct. 1231. The Court very carefully distinguished crossover and coalition districts and cautioned against confusing the two. Id. at 13, 129 S.Ct. 1231. However, the Court’s later dé-cisión in Perry v. Perez, 565 U.S. 388, 132 S.Ct. 934, 181 L.Ed.2d 900 (2012) (per curiam) may have created some of the confusion that the Court cautioned against in Strickland. In referring to a new congressional district in this Court’s interim redistricting plan, the Court in Perez stated, “If the District Court did set out to create a minority coalition district, rather than drawing a district that simply reflected population growth, it had no basis for doing so. Cf. Bartlett v. Strickland, 556 U.S. 1, 13-15, 129 S.Ct. 1231, 173 L.Ed.2d 173 (2009)(plurality opinion).” 565 U.S. at 399, 132 S.Ct. 934. The meaning of this statement, the use of the “Cf.” signal, and the reliance on Strickland is unclear, given that Strickland did not address coalition districts. If the Court meant that there was no factual basis for drawing the district, there would be no need for a citation in support. If the Court meant that there was no legal basis for drawing the district, Strickland provides no support because the opinion expressly states that it does not apply to coalition districts. In any event, the Court’s statement in Perez provides no guidance on the issue of whether the majority-minority requirement under the first Gingles precondition. mandates that a single racial or ethnic group (e.g., Hispanic or African American, but not a combination of both) constitute a majority of the citizen voting age population or whether the first Gingles precondition may be satisfied when minorities from more than one racial or ethnic group, when joined together, constitute a majority of the citizen voting age population.

The Fifth Circuit addressed this issue more than twenty-five years ago and recognized that minority groups may be aggregated to meet the first Gingles precondition. In LULAC v. Midland ISD, 812 F.2d 1494, 1500 (5th Cir.), vacated on state law grounds, 829 F.2d 546 (5th Cir. 1987), the Fifth Circuit approved of the manner in which African Americans and Hispanics were joined together as a compact minority group “capable of carrying a district.” The Fifth Circuit reached the same result one year later in Campos v. City of Baytown, 840 F.2d 1240 (5th Cir. 1988)). In Campos, the district court found that á minority group composed of both African Americans and Hispanics was sufficiently large and geographically insular to form a majority in a single-member district, The district court also found that “Blacks were cohesive, Hispanics were cohesive, together the minority group was cohesive, and that Anglos voted sufficiently as a bloc to usually defeat the minority’s preferred candidate.” Id. at 1242. The district court reviewed the totality of the circumstances, considering the relevant factors, and concluded that vote dilution had occurred and a violation of § 2 had been established. Id. On appeal, the Fifth Circuit found that the district court’s finding that the first Gin-gles requirement was satisfied was not clearly erroneous, and explained:

There is nothing in the law that prevents the plaintiffs from identifying the protected aggrieved minority to include both Blacks and Hispanics. Section 1973(a) protects the right to vote of both racial and language minorities. ... If, together, they are of such numbers residing geographically so as to constitute a majority in a single member district, they cross the Gingles threshold as potentially disadvantaged voters.

Id. at 1244 (citations omitted). The Court in Campos also explained, however, that the plaintiffs must prove that the minorities “actually vote together” in a cohesive manner; otherwise, their claim will fail. “The key is the minority group as a whole. ... If the evidence were to show that the Blacks vote against' a Hispanic candidate, or vice versa, 'then the minority group could not be said to be cohesive. But if the statistical evidence is that Blacks and Hispanics together vote for the Black or Hispanic candidate, then cohesion is shown.” Id. at 1245. Because the Campos plaintiffs showed that African Americans and Hispanics, as a minority group, were politically cohesive, the district court’s findings on the second Gingles factor was not clearly erroneous. Id. at 1248.

The Eleventh Circuit agreed with the Fifth Circuit’s view on coalition districts in Concerned Citizens of Hardee County v. Hardee County Board of Commissioners, 906 F.2d 524, 526 (11th Cir. 1990), stating that “[t]wo minority groups (in this case blacks and hispanics) may be a single section 2 minority if they can establish that they behave in a politically cohesive manner.” The plaintiffs failed to prove, however, that Black and Hispanic voters in Har-dee County were politically cohesive. Id. at 526-27.

In Badillo v. City of Stockton, 956 F.2d 884, 886 (9th Cir. 1992), the Ninth Circuit assumed that a combined group of Black and Hispanic voters met the first Gingles precondition, but held that the minority plaintiffs failed to show political cohesion as required under the second Gingles requirement. In Bridgeport Coalition for Fair Representation v. City of Bridgeport, 26 F.3d 271 (2nd Cir.), vacated on other grounds, 512 U.S. 1283, 115 S.Ct. 35, 129 L.Ed.2d 931 (1994), the Second Circuit also assumed that coalition districts are covered under § 2. The district court found that “[c]ombining minority groups to form [majority-minority] districts is a valid means of complying with § 2 if the combination is shown to be politically cohesive.” 26 F.3d at 275. The circuit court agreed that the first Gingles precondition had been met, and found “both testimonial and statistical evidence that African Americans and Hispanics in Bridgeport [were] politically cohesive and that voting in the City [was] remarkably racially polarized.” Id. at 275-76.

In Nixon v. Kent County, 76 F.3d 1381 (6th Cir. 1996) (en banc), the Sixth Circuit expressly disagreed with the Fifth Circuit on the issue of coalition districts, thus creating a clear split among the circuit courts. The redistricting plan in Nixon included a district with both African-American and Hispanic voters in order to establish sufficient numbers and satisfactory geographical compactness. Id. at 1384. The district court granted the defendants’ motion to certify the question of whether two protected minority groups may aggregate to pursue a § 2 vote dilution cause of action. Id. at 1383. The circuit court decided that if Congress had wanted to protect a minority group that was composed of more than one race or ethnicity, it would have used more words in the plural form, such as “protected classes” rather than “protected class.” Id. at 1386-87. Thus, it refused to extend § 2 coverage to a minority group that includes more than one race or ethnicity.

In 2012, the Second Circuit noted that “[t]he circuits are split as to whether different minority groups may be aggregated to establish a Section 2 claim.” Pope v. Cty. of Albany, 687 F.3d 565, 572 n.5 (2d Cir. 2012). The court ultimately resolved the case on the failure to show racially polarized voting but discussed the first Gingles precondition at length and noted that while plaintiffs may choose a more expansive minority group to satisfy the first Gingles requirement, it may also add to their burden in demonstrating political cohesion required for the second precondition. Id. at 574-77 & n.11.

To summarize, the Supreme Court has not addressed coalition districts, the Fifth Circuit has expressly permitted them, and the Second, Ninth, and Eleventh Circuits have tacitly recognized them. Only the Sixth Circuit has expressly denied § 2 protection to a combined group of minorities under the first Gingles requirement. As the Fifth Circuit has stated, “We are a strict stare decisis court.” Ballew v. Continental Airlines, Inc., 668 F.3d 777, 782 (5th Cir. 2012). Just as one panel of the circuit court “may not overrule the decision, right or wrong, of a prior panel in the absence of any intervening contrary or superseding decision by the court en banc or the Supreme Court,” a district court is bound by a circuit decision unless or until it is overturned by an en banc decision of the circuit court or a decision of the Supreme Court. See Society of Separationists, Inc. v. Herman, 939 F.2d 1207, 1211 (5th Cir. 1991). In the Fifth Circuit, Campos is binding precedent, and this Court must follow it in the absence of any authority to the contrary. Thus, if Plaintiffs can meet their burden of proof in all other respects, their § 2 claim will not fail simply because the minority group in question is composed of more than one race or ethnicity.

This is consistent with the manner in which the Supreme Court has dealt with earlier cases, in which it assumed (without deciding) that it was permissible for the district court to combine distinct ethnic and language minority groups for purposes of assessing compliance with § 2. See, e.g., Growe, 507 U.S. at 41, 113 S.Ct. 1075 (unanimous opinion). Rather than impose a strict prohibition, the Supreme Court simply cautioned that “when dilution of the power of such an agglomerated political bloc is the basis for an alleged violation, proof of minority political cohesion is all the more essential.” Id. (citing Badillo v. Stockton, 956 F.2d 884, 891 (9th Cir. 1992); Concerned Citizens of Hardee County v. Hardee County Bd. of Comm’rs, 906 F.2d 524 (11th Cir. 1990); Campos, 840 F.2d at 1244).

This is also consistent with the intent of Congress when it amended the Act in 1982. In amending § 2, Congress emphasized the need for courts to undertake a searching practical evaluation of the “past and present reality.” S. Rep. 97-417 at *30 (citing White v. Regester, 412 U.S. 755, 760-77, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973)). Coalitions of minority voters are a present reality, and affording them protection under § 2 is consistent with the Congressional goal of keeping political processes “equally open to minority voters;” S. Rep. 97-417 at *2. Minorities must still “pull, haul, and trade to find common political ground,” De Grandy, 512 U.S. at 1020, 114 S.Ct. 2647, and they will not meet the second Gingles precondition if they do not. But once that has been achieved and the minority voters, when combined, constitute a majority, the first Gingles precondition is also satisfied. The bottom line is that every case is different, and “the Gingles factors cannot be applied mechanically and without regard to the nature of the claim.” Voinovich v. Quilter, 507 U.S. 146, 158, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993). Thus, this Court follows the Fifth Circuit 'and holds that § 2 can require the creation of coalition districts, provided that the Gingles criteria (and totality of the circumstances) are satisfied as to the coalition.

C. Whether the YRA can require the State to violate the County Line Rule

It is undisputed that mapdrawers did not create certain, opportunity districts even though the proposed districts met their population thresholds because they felt that doing so would have required a County Line Rule violation. In their briefing, Defendants argue that requiring the Legislature to violate the County Line Rule to comply with § 2 would violate the Equal Protection Clause and the Shaw v, Reno line of cases because they would be subordinating traditional redistricting principles to race. Docket no, 1295 at 54-55; docket no. 996 .(Motion for Summary Judgment) at 28-31. The Court disagrees.’

The Supremacy Clause gener-allyrequires that state laws that are inconsistent with federal laws must yield to the: federal law. As a result, it is well established that state constitutional principles such as the County Line Rule must yield to the Equal Protection Clause’s one-person, one-vote requirement. Bartlett v. Strickland, 556 U.S. 1, 6, 129 S.Ct. 1231, 173 L.Ed.2d 173 (2009) (“It is common ground that state election-law requirements like the Whole County Provision may be superseded by federal law—for instance, the one-person, one-vote principle of the Equal Protection Clause of the United States Constitution.”). Mapdrawers recognized this requirement by splitting one county in the map to maintain an overall deviation below 10%, but they asserted that this was the only county cut permitted by law. And although the TLC had advised that the 'County Line Rule would also have to yield to the VRA and Texas had itself taken this position in prior redistricting litigation, redistricting leadership flatly rejected that position.

In Strickland, the Supreme Court considered the question “whether § 2 of the Voting Rights Act requires district lines to be drawn that otherwise would violate the Whole County Provision” in North Carolina’s Constitution. 556 U.S. at 7, 129 S.Ct. 1231. The Court then stated, “That, in turn, depends on how the statute is interpreted.’1 Id. The Court noted that § 2 “can require the creation of [majority-minority] districts” but -concluded that the VRA did not require the particular district at issue to be drawn because the plaintiffs had failed to establish the first Gingles precondition under the Court’s'newly established majority standard. Id. at 13-15, 129 S.Ct. 1231. Thus, because the district was not required by § 2 in that case, the Supreme Court did not directly decide the initial issué of whether § 2, when satisfied, could have required the state to draw a district in violation of the Whole County Provision, Nevertheless; such a conclusion is implied, given that the Court could simply have held that § 2 could not require any district to be drawn in contravention of the Whole County Provision, regardless of how the statute is interpreted and regardless of whether § 2 requirements were satisfied, rather than determining whether § 2 required the district, in the first instance.

Nevertheless, Defendants argue that the “Legislature’s' adherence to the Texas Constitution was not only a rational exercise of race-neutral policy; it was essential to avoid a violation of the Equal Protection Clause” and that Plaintiffs’ “suggesting that the [VRA] compels subordination of traditional redistricting principles to race, would simply redirect the strict scrutiny analysis to section 2 itself.” Docket no. 411 at 38-39. Defendants contend that Supreme Court jurisprudence holds “beyond question that traditional redistricting principles cannot be subordinated to race without running afoul of the Fourteenth Amendment.” Id. at 39-40. However, the Supreme Court’s Equal Protection cases debunk this argument.

Justice O’Connor, writing for a plurality, held that, assuming compliance with § 2’s results test is a compelling state interest (this Court holds that it is), the “narrow tailoring” requirement of strict scrutiny allows states a limited degree of leeway in furthering such' interests—“[i]f the State has a ‘strong basis in evidence’ for concluding that creation of' a majority-minority district is reasonably necessary to comply with § 2, and the districting that is based on race ‘substantially addresses the § 2 violation,’ it satisfies strict scrutiny,” meaning that it operates as a defense to a charge of racial gerrymandering. Bush v. Vera, 517 U.S. 952, 977, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996) (plurality opinion). Further, the plurality noted, the “district drawn in order to satisfy § 2 must not subordinate traditional districting princi-pies to race substantially more than is ‘reasonably necessary’ to avoid § 2 .liability.” Id. at 979, 116 S.Ct. 1941. On its face, this language makes clear that traditional districting principles may be subordinated to race when necessary to avoid § 2 liability (but no more than necessary).

Similarly, the Fifth Circuit has held that a majority-minority district “is constitutional if the State has a ‘strong basis in evidence’ for concluding that the three Gingles preconditions are present and if the district drawn in order to satisfy § 2 does not ‘subordinate traditional dis-tricting principles to race substantially more than is “reasonably necessary” to avoid § 2 liability.’” Clark v. Calhoun Cty., Miss., 88 F.3d 1393, 1407 (5th Cir. 1996); see also id. at 1406 (“a tailored response to a found [§ 2] violation must use race at the expense of traditional political' concerns no more than is reasonably necessary to remedy the wrong”). Thus, traditional districting principles such as the County Line Rule may be subordinated to race to remedy a § 2 violation, so long as it is no more than reasonably necessary. to comply with § 2. Cf. Be thune-Hill v. Va. State Bd. of Elections, — U.S. -, 137 S.Ct. 788, 197 L.Ed.2d 85 (2017) (affirming district court’s finding that although race predominated in the drawing of District 75, the district survived strict scrutiny because the legislature’s use of race was narrowly tailored to complying with § 5 of the VRA).

Defendants’ position conflates the two steps of a Shaw-type Equal Protection analysis. When a party asserts a claim under Shaw that a districter has racially gerrymandered a district, the first inquiry is whether traditional redistricting principles are subordinated to race such that racial criteria predominated; if so, strict scrutiny is triggered. In Defendants’ view, the first step would be the end of the inquiry. However, as discussed above, strict scrutiny allows the use of race when narrowly tailored to further a compelling state interest, such as complying with the VRA. Accordingly, strict scrutiny permits the subordination of traditional redistricting principles to race insofar as reasonably necessary to avoid § 2 liability and/or remedy the wrong. While states choosing to draw districts may avoid strict scrutiny under the Equal Protection Clause by respecting their own traditional districting principles and the states retain ‘“discretion to apply traditional districting principles,’ in majority-minority, as in other, districts,” Bush, 517 U.S. at 978, 116 S.Ct. 1941, this does not mean that they may claim that a single traditional districting principle such as the County Line Rule allows them to avoid drawing districts required by § 2 under the totality of circumstances. Thus, the Court rejects Defendants’ argument that the VRA cannot require the Legislature to violate the County Line Rule.

The Court will thus consider Plaintiffs’ § 2 results claims and Gingles maps, including those that create purported coalition districts and that violate the County Line Rule. However, the Court emphasizes that the VRA requires the County Line Rule to be subordinated only to the extent reasonably necessary to remedy a § 2 violation. Accordingly, Plaintiffs’ demonstration maps should attempt to honor the County Line Rule to the extent doing so is consistent with the VRA.

II. Intentional Vote Dilution and Select § 2 Results Claims by Geographic Area

. The Court applies the analytical framework for intentional vote dilution claims under § 2 of the VRA and the Fourteenth Amendment as discussed in the congressional plan opinion. For § 2 results claims, the Court applies the Gingles framework, including as discussed above.

The United States asserts intentional vote dilution claims with regard to the entire plan, but points to specific districts as proof of intent, including districts in the Rio Grande Valley (including specifically HD41), HD35, Nueces County, El Paso (HD77 and HD78), Dallas County (HD103, HD104, and HD105), Bexar County (HDÍ17 and HD118), and Harris County (HD137 and HD149). Docket no. 1304 at 2 n,l. The United States relies on circumstantial evidence as well as direct evidence, including: (1) the nudge factor emails and evidence that the nudge factor was implemented in certain Latino opportunity districts that elected an Anglo-preferred candidate in 2010; (2) racially focused statements by legislators and districting insiders showing they thought and spoke in terms of race; and (3) precinct splits, including the high number of splits in general (412 in Plan H283) and the indication that many splits were racial and indicate the use of, race as a proxy for partisanship given that accurate political information is not available below the precinct level, while racial data is. Docket no. 1279 at 11-14.

The Perez Plaintiffs also complain that Plan H283 “intentionally discriminated against minority voters.” Docket no. 960 ¶ 28. They (joined by the NAACP Plaintiffs) specifically allege such discrimination in Dallas County, Tarrant County, Harris County, Bell County, McLennan County, Fort Bend County, Nueces County, Bexar County, and HD41. Id.; docket no. 1303; docket no. • 601. The NAACP alleges that Plan H283 was developed with the .intent to disadvantage African-American and other minority voters. Docket no. 900 ¶ 62.

■ MALC challenges Plan H283 as a whole as intentionally diluting Latino voting strength by failing to draw new opportunity districts despite the population growth, using the County Line Rule to avoid drawing minority opportunity districts required by § 2 and diminishing Latino voting strength, packing and cracking politically cohesive Latino and minority communities, manipulating population, and racial gerrymandering, Docket'no. 897 ¶¶ 2-10. MALC also specifically alleges that mapdrawers: pretextually used the County Line Rule to avoid drawing a new Latino opportunity district in the Midland/Odessa area of West Texas (¶38); eliminated a Latino opportunity district in Nueces' County (¶ 42); failed to draw an additional Latino opportunity in Harris County (¶¶ 47-48); failed to provide minority opportunity in Fort Bend County and unnecessarily fragmented the minority population there to minimize its political strength (¶ 51); failed to draw an additional minority opportunity district in Bell County and intentionally fragmented the minority community in Kil-leen to minimize its political impact (¶¶ 54, 56); intentionally fragmented minority population while at the same time overpopulating Latino majority districts in Dallas County, leading to the failure to create at least one and possibly two additional minority opportunity house districts in Dallas County (¶57); impermissibly focused on race and targeted low-turnout Hispanic voters for inclusion in HD117 in Bexar County to protect incumbent Republican John Garza (¶ 58); and drew the border between HD77 and HD78 in El-Paso with racially discriminatory intent (¶ 59). ■

Defendants assert that the mapdrawers’ application of the County Line Rule is not evidence of intentional vote dilution • because it was a consistently applied neutral, traditional districting principle. Docket no. 457 at 68. Defendants further generally deny any improper use of race, arguing that any consideration or use of race was only as needed to comply with the VRA.

A. El Paso County

Plaintiffs assert that the El Paso County configuration, particularly ■ HD77 and HD78, is evidence-.of intentional vote dilution. Plaintiffs assert “nudge factor” claims against HD78 and contend that it intentionally • does not provide Latinos equal opportunity in an effort to protect the Republican incumbent Dee Margo. Plaintiffs also assert that five compact Latino opportunity districts should have been drawn in El Paso County compared to only four opportunity districts in Plan H283. Although the HCVAP of HD78 is, over 50% (55.2%), Defendants admit that “Plan H283 did not create an additional majority-Latino district- in El Paso,” docket no. 413 FF71, presumably because it did not meet their 50% SSVR threshold even though it was (and all four other districts in El Paso County were) over 50% HCVAP.

• The United States asserts that map-drawers’ intentional refusal to create a fifth Latino opportunity district in El Paso, even though it could be done without violating the County Line Rule or other traditional districting principles, and instead making a “policy choice” to protect the Anglo incumbent was intentional vote dilution. Docket no. 1279 at 36, 39-40. To do this, the United States argues, Dowiiton manipulated the SSVR in HD78 and analyzed election data to ensure that the Hispanic candidate of choice was unlikely to be elected. Docket no. 1279 at 40.

The Task Force Plaintiffs argue that the Latino population “could be more evenly spread among all five districts in El Paso County,” giving Latinos the opportunity to elect their candidate of choice in all five districts, and that Plan H283 packs Latino voters in El Paso County into the other districts to prevent Latino voters in HD78 from electing their candidates of choice. Docket no. 634 FF458, 459; docket no. 1282 at 2. The Task Force Plaintiffs contend that HD78 in Plan H283 is not a Latino opportunity district but that it could be drawn as an additional Latino opportunity district as in their demonstration Plan H292. Docket no. 1282 at 6.

MALC’s Third Amended Complaint notes that the border between HD77 and HD78 has a, bizarre shape with deer antler protrusions that split multiple precincts between these two districts. Docket no. 897 ¶59. MALC notes that its Plan H205 creates five reasonably compact majority-SSVR and majority-HCVAP districts in El Paso. Docket no. 412 at 18.

. Defendants assert that the “possibility of creating an additional Latino-majority Democratic district does not obligate the State to create it” and that Plaintiffs have failed to show that the totality of circumstances required such a district,, especially-given that “Democratic voters are consistently successful in electing their candidates of choice in El Paso County” and “the alleged number of Latino candidates of choice elected to the House from El Paso County—four out of five—is proportional to the Latino percentage of-, citizen voting age population.” Docket no. - 457 at 33. '

Defendants further assert- that the El Paso map was developed and agreed to by the five-member delegation, four of whom were Democrats and members of MALC, and all of whom were elected from HCVAP-majority districts. Docket no. 1249-1 at 10. Defendants point out that under both Plan H100 and Plan H283, all five districts were over 50% HCVAP and all but HD78 were over 50% SSVR,'and assert that the levels of both were “substantially similar across both plans.” Docket no. 1249-1 at 13. Defendants argue that “there is no evidence that the configuration of HD78 deprives any Latino voter in El Paso County of an ‘equal opportunity’ to participate in the political process or to elect candidates of their choice” and that, even if Plaintiffs could satisfy- all three Gingles preconditions, they fail to “prove that the totality of circumstances requires the State to restructure HD78 to unseat . the incumbent” because “Latinos are more than proportionally represented in El Paso County’s House , delegation,”- “[t]he only possible basis for Plaintiffs’ claim is the Legislature’s failure to maximize Latino representation,” and “[t]he Legislature’s decision to maintain existing Latino population levels in- the district, presumably offering some protection to the incumbent, .does not-support a finding of vote dilution.” Docket no. 411 at 42; see also- docket no. 457 at 31-32.

The Court finds that Downton reconfigured the border between HD77 and HD78 to intentionally dilute the Latino vote in HD78. Although Pickett, the County delegation dean, submitted two County proposals to Solomons, Downton -chose the one that was not preferred by Pickett, and he then made further changes to the border between HD77 and -HD78 without input from the delegation. See TrJ2103 (Down-ton did not incorporate input from Margo or Marquez). The evidence appears -undisputed that, after choosing to go forward with the Marquez map from the El Paso County delegation, Downton made further unilateral, race-based changes to the border of HD77 and HD78, -ostensibly to address concerns raised by David Hanna about the fact that the SSVR of HD78 had dropped below benchmark levels. Hanna’s memo stated that this “risk of retrogression ... could easily be remedied by swapping some precincts with an adjoining district,” especially in light of the disparity in SSVR between HD78 and the other El Paso districts. D-122. However, rather than follow Hannah’s advice to increase the SSVR of HD78 by swapping a few precincts, Plaintiffs contend that Downton surgically split precincts and moved individual census blocks between HD77 and HD78, while monitoring election data to ensure that he did not create a Latino opportunity district. Docket no. 1279 (United States Brief) at 39-40. The Court agrees with this assessment.

Although Downton claimed to make these race-based splits with the goal of complying with § 5 by raising the SSVR of HD78 (TrJ2002, TrJ2102), his so-called “compliance” with § 5 was intentionally superficial because he wanted to protect the Republican incumbent elected in 2010, who was not the Latino candidate of choice. Downton’s changes were designed to appear to comply with § 5 by increasing the SSVR of HD78, but without increasing or ensuring Latino ability to elect, which is the basis upon which § 5 permits such race-based districting actions. Downton’s precinct splits were deliberate and based on more than simply increasing SSVR; his purpose was to increase the SSVR while simultaneously ensuring that election success rates remained minimally improved for Latinos.

Downton achieved his purpose by increasing the total SSVR by 1% (and non-suspense SSVR by .9%), while increasing election performance for Latinos by only .3 or .4%. PL-503; D-109. Further, Downton and mapdrawers knew from the OAG 10 that although HD78 remained at 2/10 wins for Latino-preferred candidates, the margin of victory for the two prevailing Latino-preferred candidates had been reduced from the benchmark. US-190; US-190A. This is not compliance with § 5, which looks to numerous factors, including Latino election success, in determining whether a district has “ability to elect,” and does not just focus on a single demographic such as SSVR. In fact, increasing the SSVR while at the same time monitoring Latino ability to elect to ensure that it is not correspondingly increased is antithetical to the purpose of § 5 and the VRA and is intentionally racially discriminatory. The changes cannot be excused as mere partisan gerrymandering because of their racially discriminatory nature. Given the existence of racially polarized voting in El Paso County and the totality of circumstances, this manipulation constitutes intentional vote dilution in violation of § 2 of the VRA and the Fourteenth Amendment.

In sum, the § 2 results claims in El Paso County are moot, but the Court finds that mapdrawers intentionally diluted the Latino vote in violation of § 2 of the VRA and the Fourteenth Amendment with regard to HD78.

B. Bexar County

Benchmark HD117 was a Latino opportunity district, electing the Hispanic candidate of choice in three out of the five last endogenous elections. In 2010, it elected Republican John Garza, who was not the Latino candidate of choice. Numerous Plaintiffs contend that the Legislature intentionally diluted Latino voting strength in the district to protect Garza. Plaintiffs argue that HD117 was no longer a Latino opportunity district in Plan H283 despite its majority-HCVAP and majority-SSVR status. The D.C. Court found that HD117 was an ability-to-elect district in the benchmark, but was no longer an ability-district in Plan H283. Texas v. United States, 887 F.Supp.2d 133, 170-71 (D.D.C. 2012), vacated on other grounds, — U.S. -, 133 S.Ct. 2885, 186 L.Ed.2d 930 (2013). Based on a preliminary finding that mapdrawers were impermissibly focused on race in trying to make HD117 more Republican, this Court remedied the “not insubstantial” § 5 claim in the interim plan, reconfiguring HD117 to return it to benchmark performance levels. Docket no. 690 at 6.

The Task Force' Plaintiffs bring a “nudge factor” claim against HD117 in Bexar County. The United States also' asserts a nudge factor claim, arguing that mapdrawers replaced high-turnout Hispanic voters with poor, low-turnout Hispanic precincts to increase Hispanic population levels but decrease SSVR, Hispanic turnout, and Hispanic electoral performance. Docket no. 1279 at 41. MALC also alleges that “[i]n creating a district to safely re-elect Rep. Garza the state impermis-sibly focused on race by targeting low-turnout Latino precincts.” Docket no. 897 ¶ 58.

Defendants argue that the Bexar' County map was developed by the ten-member delegation, led by Democrats Villarreal and Ruth Jones McClendon. Docket no. 1249-1 at 15. Defendants contend that Garza wanted rural areas because he viewed them as more conservative and more likely to vote Republican, and that he wanted to create a rural, conservative district outside the City of San Antonio to bolster his re-election prospects while maintaining SSVR over 50%, and that this is not evidence of racial animus. Docket ho. 1249-1 at 17, 1249-2 at 23 (citing TrJ399 (Garza), TrJ1518, TrJ1523 (Interiano)). Defendants point to Farias’s testimony that it was a partisan decision. Docket no, 1272 at 56 (citing Tr353-54).

Defendants argue that Speaker Straus and his staff determined that in order to achieve these goals, HD117 needed to include rural areas of southern Bexar County that were previously represented by Farias under the benchmark. Docket no. 1249-2 at 23 (citing TrJ1559 (Interiano)). Defendants assert that ultimately HD117 was agreed to by Rep. Villarreal and 9 of 10 members of the Bexar County delegation, that even if Garza had an improper motive, there is no evidence other members of the delegation were aware of that motive, and that Plaintiffs have not shown that Garza’s individual motivations were a substantial or motivating factor behind the Legislature’s adoption of the plan. Docket no. 1249-2 at 23-24; docket no. 1272 at 54.

It is undisputed that Garza’s initial ideal district was rejected by redistricting leadership because it fell below 50% SSVR and that mapdrawers and redistricting leadership felt that HD117 had to be maintained above 50% SSVR to avoid retrogression. Defendants’ argument that this was. an agreed delegation map is demonstrably false with regard to the configuration of HD117. Rather, the evidence is clear that Garza’s and Larson’s staff worked with Interiano to draw the configuration of HD117 that was placed into Plan H283, and that Farias vigorously objected to the configuration of his district. The delegation members (except Garza and Straus) also voted against the motion to table Farias’s proposed amendment. D-190 at 2294-95.

Interiano worked to draw a district with exactly 50.1% SSVR to maintain its appearance as a Latino opportunity district and avoid retrogression under the map-drawers’ majority-SSVR criterion, while minimizing Hispanic turnout. He added in areas such as Somerset and 'Whispering Winds with higher Hispanic-population but low Hispanic voter turnout and removed areas inside San Antonio, such as areas- of South San Antonio ISD, that had highly mobilized Hispanic voters. Hispanic population was manipulated to maintain exactly 50.1% SSVR while minimizing Hispanic turnout and electoral performance.

Although Interiano testified that they were simply trying to balance increasing SSVR with “keeping political numbers up,” his explanations for the district were not credible, as discussed in the fact findings. His testimony that Garza wanted to stay outside the City was not credible, as noted. His testimony that Garza was concerned with water issues also was not credible, given that Garza himself testified that the political issues surrounding Bexar Met were independent from redistricting, and he did not have any goals in redistricting relating to taking more or less of Bexar Met territory. TrJ405-08. Interiano’s denial of using turnout to shape the district is not credible.

Rather, the Court finds that In-teriano drew the district to increase SSVR. while intentionally minimizing any gains in Latino electoral performance. This is consistent with Garza’s own.testimony. Garza testified at his deposition that his ideal district went farther north because the area was “more Anglo,and more conservative,” and he. preferred more Anglo and. more conservative areas because “[t]hey would tend to vote Republican.” PL-454 (Garza 10-19-11 depo.) at 30-31; TrJ367-69 (Garza). He-also testified that he and his staff had looked at turnout, including the'turnout between Anglos and Hispanics. TrJ373, He testified that rural Hispanic turnout tended to be low, and he thought Somerset Hispanic turnout would be low. TrJ374, TrJ403-04. Further, Interiano and Garza’s staff knew that Garza- did not tend to win SSVR-majority precincts. PL-1664. The-wishes of senior-member Farias to maintain his relationship with Whispering Winds and Somerset were ignored and were not permitted to interfere with the goal of protecting Garza by suppressing Latino electoral performance. And Solo-mons’ objection to Farias’s proposed amendment, which would have kept the district at 60.1%. SSVR—that it contained more split precincts—was obviously pre-textual given the number of split precincts in the plan created by his own mapdraw-ers. , .

The final configuration -of HD117 includes a very large gap between HCVAP and SSVR of 13.7 points, well beyond any gap in any other House district, By minimizing Hispanic voter registration and turnout, Interiano successfully decreased the performance, of HD117. According to Handley, HD117’s performance on the exogenous election index went from 60% to 20%. Considering all .the evidence, - that Court finds that mapdrawers intentionally drew. HD117 with 50.1% SSVR but with lower performance for Latinos by manipulating Latino population and turnout. In-teriano was given authority to .draw the maps,- by redistricting leadership, and his knowledge and motives must be imputed to the Legislature as a whole, regardless of whether individual members of the Legislature were aware of the information when they voted for the map. The configuration of HD117 is evidence of intentional vote dilution under § 2 of the VRA and the Fourteenth Amendment.

In sum, any § 2 results claims in Bexar County are moot, but the Court finds that mapdrawers intentionally diluted the Latino vote in HD117 in violation of § 2 and the Fourteenth Amendment.

C. Nueces County

It is undisputed that Nueces County had two benchmark Latino opportunity districts, though they both elected Republicans in 2010. It also contained part of a third district represented by Anglo Republican Todd Hunter, When faced with slower population growth in Nueces County such that it would only be entitled to two districts under the County Line Rule, Hanna advised mapdrawers that they had three options: (1) draw one “performing” Hispanic district and one not; (2) draw two equally Hispanic districts, which may not perform reliably; or (3) see if both Latino opportunity districts Could be preserved by splitting county lines. D-122. Hanna advised that the County’ Line Rule would have to yield to the VRA if retrogression could be avoided by splitting the county and it would clearly contribute to total Hispanic voting strength statewide. As noted in the fact findings, mapdrawers chose the first option because they felt it allowed them to maintain more Republican seats and protect Republican Anglo incumbent Hunter. Mapdrawers did not look into whether two Hispanic districts could be maintained in Nueces County, either wholly within Nueces County or by breaking the County Line Rule.

Defendants contend that the reduction in population combined with the County-Line Rule eliminated the minority district in Nueces County, and the delegation proposed the new districts. They contend that the configuration reflects only partisan and neutral districting principles and does not violate the VRA. The configuration of Nueces County remains unchanged in the current plan.

The § 2 results claim in Nueces County presents two questions: (1) assuming only two districts are required within Nueces County, did plaintiffs prove a § 2 violation by the Legislature’s failure to draw both as Latino opportunity districts? and (2) have Plaintiffs proven that the VRA requires more than two districts to be drawn in Nueces County (ie., a County Line rule violation)?

Defendants argue that Plaintiffs fail to prove a § 2 violation because Nueces County was only entitled to two districts and, “[according to the only population data available at the time the Texas House map was drawn, Nueces County’s total SSVR percentage was 49.5%” such that creating two SSVR-majority districts within Nueces County was impossible. Docket no. 411 at 42-43. It is true that, at the time the first drafts of the map were created, the only current data mapdrawers had available was SSVR. Because Nueces County was less than 50% SSVR, it was mathematically impossible to draw two SSVR-majority districts within the County. However, mapdrawers knew that SSVR was typically lower than HCVAP, that Nueces County had been over 50% HCVAP in 2000, and that Hispanic population had increased while Anglo population had declined, meaning they had every reason to believe that the HCVAP of Nueces County was over 50% even without more recent HCVAP data.

Moreover, Defendants’ assertion that HCVAP data was not available is simply untrue. The HCVAP data was available to mapdrawers by April 21, 2011, before the map went to the floor, and would have shown that Nueces County HCVAP was over 50%. Interiano stated at trial that he knew that the HCVAP of Nueces County exceeded 50%, Trl463, and he also would have been aware that HCVAP was the appropriate measure for determining whether § 2 required a Latino opportunity district. E.g., US-76 (Optela November 20, 2010 email, with Interiano copied, discussing that they needed to evaluate districts in terms of VAP and CVAP and stating that Fifth Circuit law clearly established CVAP as the standard). Downton testified repeatedly that he used a 50% HCVAP standard for measuring Latino opportunity districts. Nevertheless, Interiano as primary mapdrawer and other redistrict