Perez v. Abbott (274 F. Supp. 3d 624, 2017)

ORDER ON PLAN C235

XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE,

on behalf of the panel

Before Circuit Judge SMITH, Chief District Judge GARCIA, and District Judge RODRIGUEZ

This Order addresses Plaintiffs’ statutory and constitutional claims against Plan C235, enacted by the 83rd Texas Legislature in 2013.

The following Plaintiffs assert claims against Plan C235 in this consolidated case: the Mexican American Legislative Caucus (“MALC”), the NAACP Plaintiffs, the African-American Congresspersons Plaintiffs, the League of United Latin American Citizens (“LULAC”) Plaintiffs, the Rodriguez Plaintiffs, the Quesada Plaintiffs, and Congressman Henry Cuellar.

Plaintiffs assert statutory claims under § 2 of the Voting Rights Act (“VRA”) and constitutional claims under the Fourteenth and Fifteenth Amendments to the United States Constitution.

Procedural History and Background

Plaintiffs initially filed several lawsuits in 2011 challenging Plan C185 and Plan H283 enacted by the 82nd Legislature, and the various cases were consolidated. At the time, Texas was subject to preclearance requirements under § 5 of the VRA, and Texas filed a simultaneous action seeking preclearance in the United States District Court for the District of Columbia—Texas v. United States, No. 11-1303 (D.D.C). Plaintiffs presented numerous claims in this Court under § 2 of the VRA and the Fourteenth and Fifteenth Amendments, and raised numerous challenges to the plans in the related preelearance litigation in the District of Columbia. The D.C. Court held a trial in January 2012 but had not yet issued a ruling in February 2012.

Faced with impending election deadlines and un-precleared plans that could not be used in the election, this Court was faced with the “unwelcome obligation” of implementing interim plans so that the primaries could proceed. See docket no. 690 at 2 (quoting Connor v. Finch, 431 U.S. 407, 415, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977)). This Court considered compromise plans (Plan C226 and Plan H303) proposed by certain parties. Although the plans were supported by some parties, including Defendants, most parties contended that they maintained statutory and constitutional infirmities challenged in Plan C185 and Plan H283. The Court adopted Plan C235 (which was Plan C226 as modified for purely technical reasons) and Plan H309, a plan similar to Plan H303 but with changes in Harris County, Bexar County, Webb County, and Nueces County.

This Court found that adoption of these plans. as the interim plans for the 2012 elections -was consistent with the deferential standards set forth in Perry v. Perez, 565 U.S. 388, 132 S.Ct. 934, 181 L.Ed.2d 900 (2012) and would significantly benefit the voters, candidates, election administrators, counties, and political parties. Docket nos. 690, 691. The Court noted that its analysis had been expedited and curtailed and that it had been able to make only preliminary conclusions that might be revised upon full analysis. Docket no. 690 at 3 (“[W]e emphasize the preliminary nature of this order and that, except for the fact that PLAN H309 sets the districts for the 2012 elections, nothing in this opinion reflects this Court’s final determination of any legal or factual matters in this case or the case pending in the D.C. Court.”); docket no. 691 at 1 (noting that “this interim map is a result of preliminary determinations” and “is not a final ruling on the merits of any claims”).

As directed by the Supreme Court, this Court in adopting an interim map attempted to determine which claims pending in the D.C. Court preclearance litigation were “not insubstantial” because the D.C. Court had exclusive jurisdiction over the § 5 claims, but had not yet ruled. That Court issued its decision denying preclearance of Plan C185 and Plan H283 on August 28, 2012. Texas v. United States, 887 F.Supp.2d 133 (D.D.C. 2012). The panel majority found that Plan C185 increased the “representation gap” from three districts to four districts and thus increased the degree of discrimination and was retrogressive. Because the panel did not agree on the appropriate rationale for finding retrogression, they considered the issue of discriminatory intent and unanimously found that “the plan was enacted with discriminatory purpose.” Id. at 159. The Court specifically noted that unnecessary changes were made to the three African-American ability districts that raised serious concerns about what motivated the Congressional plan, and that Texas failed to explain the changes as anything other than “coincidence.” Id. at 159-61.

With regard to Plan H283, the D.C. Court found that it would have the effect of abridging minority voting rights in benchmark ability districts 33, 35, 117, and 149, and that Texas did not create any new ability districts to offset those losses. Accordingly, the plan was retrogressive and could not be precleared.

Having found retrogressive effect, the D.C. Court did not need to reach whether Plan H283 was drawn with a discriminatory purpose, but it did “note record evidence that eause[d] concern.” 887 F.Supp.2d at 177. This evidence included that the process for drawing the plan “showed little attention to, training on, or concern for the VRA” and the failure to create any new minority ability districts among 150 relatively small House districts despite the dramatic Hispanic population growth concentrated primarily in three geographic areas. Id. at 177-78. The D.C. Court further stated, “These concerns are exacerbated by the evidence we received about the process that led to enacted HD 117,” specifically that “mapdrawers modified HD 117 so that it would elect the Anglo-preferred candidate yet would look like a Hispanic ability district on paper,” showing “a deliberate, race-conscious method to manipulate not simply the Democratic vote but, more specifically, the Hispanic vote.” Id. at 178 (emphasis in original).

The D.C. Court also found incredible the testimony of primary House mapdrawer Gerardo Iñteriano that he was unaware of the capability of Texas’s redistricting software (RedAppl) to display racial data at the census block level, which reinforced evidence suggesting that mapdrawers split voter tabulation districts (“VTDs”) along racial lines to dilute minority voting power. Id. The D.G. Court concluded,

This and other record evidence may support a finding of discriminatory purpose in enacting the State House Plan. Although we need not reach this issue, at minimum, the full record strongly suggests that the retrogressive effect we have found may not have been accidental.

Id. Texas appealed the D.C. Court’s decision denying preclearance to the Supreme Court.

The Court’s interim maps, H309 and C235, were used for elections in 2012. Despite urging.from the. Texas Attorney General to adopt the Court’s interim maps during the regular session in 2013, the Texas Legislature’s regular session ended in May 2013 with no redistricting action. However, Governor Rick Perry called a special session directing the Legislature to consider “legislation which ratifies and adopts the interim redistricting plans ordered by the federal district court as the permanent plans for districts used to elect members of the Texas House of Representatives, Texas Senate and Uhited States House of Representatives.” D-684.

The Legislature reconvened and undertook this redistricting task. During the special session, some changes were made to Plan H309,- and it was adopted as Plan H358. By June 23, 2013, the Legislature had passed SB3 and’SB4 to enrollment. SB4 “ratified and adopted” this Court’s interim congressional map, Plan C235, without change, ■ and repealed SB4 from the 2011 first special session, which had adopted Plan C185. SB3 adopted Plan H358 as the plan for the Texas House of Representatives and repealed HB150 from the 2011 regular session, which had adopted Plan H283. SB3 and SB4 were sent to the Governor on June 24, 2013.

On June 25, 2013, while Texas’s appeal of the D.C. Court’s decision was pending, the United States Supreme Court issued its decision in Shelby County v. Holder, 570 U.S. 529, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013), holding that the § 4(b) coverage formula of the VRA that determined which jurisdictions were subject to § 5 preclearance was unconstitutional. Accordingly, Texas was no longer automatically subject to preclearance requirements. The Governor signed SB3 and SB4 on June 26, 2013.

On June 27, 2013, the Supreme Court vacated the D.C. Court’s judgment and remanded for further consideration in light of its intervening decision in Shelby County v. Holder, 570 U.S. 529, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013) and the suggestion of mootness filed by defendant Wendy Davis. Texas v. United States, 570 U.S. 928, 133 S.Ct. 2885, 186 L.Ed.2d 930 (2013). On remand, the D.C, Court dismissed the preclearance litigation as moot.

On June 28, 2013, Defendants filed a motion to dismiss for lack of subject matter jurisdiction (docket no. 768) in this case, arguing that the case had become moot and should be dismissed. This Court held a status conference on July 1, at which Plaintiffs expressed a desire to amend their complaints to challenge the 2013 plans, and some Plaintiffs stated their intent to amend their existing claims related to the 2011 plans to seek relief under § 3(c) of the VRA. After the hearing, the Court issued an order summarily denying the motion to dismiss for lack of jurisdiction without prejudice (docket no. 771) and issued an order directing Plaintiffs to file motions for leave to amend pleadings.

Plaintiffs filed their motions, and the State responded fa opposition and with a motion to dismiss as moot all claims related to the 2011 plans. This Court entered an order on September 6, 2013 on the pending motions (docket no. 886) permitting Plaintiffs to amend their claims with regard to the 2011 plans to assert requests for equitable relief under § 3(c) and' to assert claims against the 2013 plans. The Court rejected Defendants’ mootness argument, for the reasons explained in that Order and in docket no. 1104. In sum, this Court found that the claims against the 2011 plans C185 and H283 were not moot because Plaintiffs alleged that they were continuing to be harmed by the Legislature’s actions fa enacting Plan C185 and Plan H283, Texas had refused to concede any of Plaintiffs’ claims, and Plaintiffs had alleged claims for which meaningful relief was available. The Court further ordered that the 2013 enacted plans, C235 and H358, be used for the 2014 elections.

Thereafter, Plaintiffs filed their amended complaints. Plaintiffs generally maintained their claims against Plan C186 and Plan H283 and sought relief under § 3(c) of the VRA. Most Plaintiffs amended their Complaints to assert claims against Plan C235. Specifically, Congressman Cuellar filed a Second Amended Complaint in Intervention (docket no. 893) asserting claims under § 2 of the VRA and the Fourteenth and Fifteenth Amendments; LULAC filed a Third Amended Complaint (docket no.’894) asserting claims under § 2 of the VRA and the-Fourteenth'and Fifteenth Amendments; the Rodriguez-Plaintiffs filed a Second Amended Complaint (docket no. 896) asserting claims under § 2 of the VRA and the Fourteenth and Fifteenth Amendments; the Quesada Plaintiffs filed a Third Amended Complaint (docket no. 899) asserting claims -under § 2 of the VRA.and, the Fourteenth and Fifteenth Amendments; the NAACP filed a Third Amended Complaint (docket no. 900) asserting claims under § 2 of the VRA and the Fourteenth and Fifteenth Amendments; the African-American Congressperson Intervenors filed a Second Amended Complaint (docket no. 901) asserting claims under §-2 of the VRA and the Fourteenth and Fifteenth Amend-ménts; the Perez Plaintiffs filed a Sixth Amended Complaint (docket no. 960) asserting intentional discrimination claims under § 2 of the VRA and the Constitution; and MALC filed a Third Amended Complaint (docket no. 897) asserting claims under § 2 of the VRA.

Some Plaintiffs also amended their complaints to assert claims against Plan H358: the Task Force filed a Fourth Amended Complaint asserting statutory and constitutional claims based on changes to HD90 from the Court’s interim plan (docket no. 891); MALC asserted claims under § 2 of the VRA and the Fourteenth and Fifteenth Amendments (docket no. 897); the NAACP asserted claims under § 2 of the VRA and the Fourteenth and Fifteenth Amendments (docket no. 900); and the Perez Plaintiffs filed a Sixth Amended Complaint (docket no. 960) asserting intentional discrimination claims under § 2 of the VRA and the Fourteenth and Fifteenth Amendments, and those claims were joined by LULAC.

The Texas Latino Redistricting Task Force and the United States did not assert claims against Plan C235, and the Task Force claims are limited to HD90 in Plan H358. The Texas Democratic Party (“TDP”) and Gilberto Hinojosa filed a First Amended Cross-claim (docket no. 902) to assert partisan gerrymandering claims under the Equal Protection Clause and the First Amendment against the 2013 plans. Individual Plaintiff John Morris also asserted partisan gerrymandering claims against Plan C235 (docket no. 784). This Court granted Defendants’ motion to dismiss the political gerrymandering claims against the 2011 and 2013 plans in docket no. 886 and docket no. 1104, and thus all of TDP’s and Morris’s claims were dismissed. The Court also granted summary judgment on the Fifteenth Amendment claims against the 2011 and 2013 plans in docket no. 275 and docket no. 1108. See docket no. 1387.

This Court held a trial on Plan H283 in July 2014 and on Plan C185 in August 2014 and later issued extensive fact findings and rulings on Plaintiffs’ claims. The Court found that certain aspects of those plans violated § 2 of the VRA and the Fourteenth Amendment. Docket no. 1365 (Order on Plan H283); docket no. 1364 (Fact Findings related to Plan H283); docket no. 1390 (Amended Order on Plan C185); docket no. 1340 (Fact Findings).

Plaintiffs contend that certain aspects of Plan C185 and Plan H283 that the Court found to be the product of discriminatory intent or constitutional and statutory violations were maintained in Plan C235 and Plan H358, rendering them infirm. In addition, Plaintiffs bring various statutory and constitutional challenges against Plan C235 and Plan H358. This Court held a trial on Plan C235 and Plan H358 in July 2017 and now issues rulings on Plaintiffs’ claims against Plan C235.

I. Legal Standards

At this stage, this case involves claims under § 2 of the VRA and the Fourteenth Amendment. The right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot. Allen v. State Bd. of Elections, 393 U.S. 544, 569, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). Under § 2, Plaintiffs assert both “results” vote dilution and intentional discrimination/vote dilution claims. Under the Fourteenth Amendment, Plaintiffs assert both intentional discrimination/vote dilution and Shaw-type racial gerrymandering claims. The Court discussed these claims previously in its decisions on the 2011 plans, and will briefly summarize the applicable standards here.

A. § 2 of the Voting Rights Act

Section 2 of the VRA “was designed as a means of eradicating voting practices that minimize or cancel out the voting strength and political effectiveness of minority groups.” Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 479, 117 S.Ct. 1491, 137 L.Ed.2d 730 (1997) (internal quotations omitted). In its current form, § 2(a) provides that no voting standard, practice, or procedure “shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color ... as provided in subsection (b).'” 52 U.S.C. § 10301(a). Under section 2(b), a state violates § 2 “if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State ... are not equally open to participation by members of a class of citizens protected by [§ 2(a) of the VRA] 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.” 52 U.S.C. § 10301(b).-Section 2 prohibits all race discrimination in voting, but claims under § 2 generally assert vote denial or vote dilution- injuries.

The Supreme Court held in Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), that a race-based vote dilution claim under the Fourteenth Amendment required racially discriminatory intent, not simply dilutive results. In passing the 1982 amendments to the VRA, Congress reacted, to that decision. Velasquez v. City of Abilene, Tex., 725 F.2d 1017, 1021 (5th Cir. 1984). As the Fifth Circuit noted in LULAC v. Clements, 999 F.2d 831, 849-51 (5th Cir. 1993), “the 1982 Amendments (to § 2] ‘codify’ the ‘results test’ articulated in” constitutional voting discrimination cases prior to Mobile v. Bolden, making. clear that a § 2 violation could be proved without discriminatory intent. However, the legislative history of § 2 and case law also make clear .that voters may bring a claim based on discriminatory voting practices using either the results test or an intentional discrimination test.. The Senate Report further states that, if a §■ 2 plaintiff chooses to prove discriminatory intent, .“direct ■ or indirect circumstantial evidence, including the nor-. mal inferences to be drawn from the foreseeability of defendant’s actions” would be relevant evidence , of intent. McMillan, 748 F.2d at 1046-47 (quoting S. Rep. No. 97-417 at 27 n.108).

1. Results Claims

As noted, Congress amended § 2 of the VRA in 1982 “to prohibit legislation that results hi the dilution of a minority group’s voting strength, regardless of the legislature’s intent.” Shaw v. Reno, 509 U.S. 630, 641, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993) (emphasis in original). Such results claims are governed by the- framework established in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). Gingles- identified three threshold conditions for establishing a § 2 results violation: (1) the racial group is‘sufficiently large- and geographically compact to constitute a majority in a single-member district; (2) the racial group is politically cohesive; and (3) the majority votes sufficiently as a bloc to enable it usually to defeat the minority’s preferred candidate. Johnson v. De Grandy, 512 U.S. 997, 1006-07, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994); see also Cooper v. Harris, — U.S. -, 137 S.Ct. 1455,1470,197 L.Ed.2d 837 (2017). .

“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). A minority population (either singly or combined in coalition with other minorities ) is sufficiently large when it constitutes greater than 50% of the citizen voting age population of the district. Bartlett v. Strickland, 556 U.S. 1, 11, 129 S.Ct. 1231, 173 L.Edl2d 173 (2009) (plurality); Valdespino v. Alamo Heights Indep. Sch. Disi, 168 F.3d 848, 853 (5th Cir'. 1999). Because the decennial census data does not include CVAP data, the Court has instructed the parties to use the five-year 2011-2015 ACS survey data to best approximate the CVAP in 2013, when the maps were enacted.

Generally, to evaluate § 2 results claims, it must be determined how many “reasonably compact districts” exist in the enacted plan, and whether Plaintiffs have demonstrated that more were required, which is usually done through presentation of demonstration maps. LULAC v. Perry, 648 U.S. 399, 430, 126 S.Ct. 2594, 165 L.Ed.2d 609 (2006) (“De Grandy requires a comparison between a challenger’s pro-posai and the ‘existing number of reasonably compact districts.’”). When evaluating compactness, the Court focuses on the compactness of the minority population (in terms of its size and concentration), not the compactness of-the. contested district or necessarily the ■ precise shape of its boundaries, though the shape of the district is relevant insofar as it provides evidence concerning the compactness of the minority population. LULAC v. Perry, 548 U.S. 399, 433, 126 S.Ct. 2594, 165 L.Ed.2d 609 (2006); Houston v. Lafayette Cty., Miss., 56 F.3d 606, 611 (5th Cir. 1995).

If, because of the dispersion of the minority population, a reasonably compact majority-minority district cannot be created, § 2 does not require a majority-minority district, and a district that reaches out to grab smail and apparently isolated minority communities is not reasonably compact. Bush v. Vera, 517 U.S. 952, 979, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996); LULAC, 548 U.S. at 432, 126 S.Ct. 2594. However, members of a racial group in different areas could share similar interests and therefore form a compact district “if the areas are in reasonably close proximity.” LULAC, 548 U.S. at 435, 126 S.Ct. 2594. “A district would not be sufficiently compact if it was so convoluted that there was no sense of community, that is, if its members and its representative could not easily tell who actually lived in the district.” Rodriguez v. Harris Cty., Tex., 964 F.Supp.2d 686, 737-38 (S.D. Tex. 2013) (citing Clark v. Calhoun Cty., Miss., 21 F.3d 92, 96 (5th Cir. 1994) (noting that “[a] number of courts have concluded that the first Gingles precondition is not satisfied if the proposed district does not retain a natural sense of community such, that it can be effectively represented”)).

Further, the § 2 compactness inquiry must take into account traditional districting principles such as maintaining .communities of interest and traditional boundaries. Abrams v. Johnson, 521 U.S. 74, 92, 117 S.Ct. 1925, 138 L.Ed.2d 285 (1997) (citing Bush v. Vera, 517 U.S. 952, 977, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996)); Montes v. City of Yakima, 40 F.Supp.3d 1377, 1391-92 (E.D. Wa. 2014) (“The compactness inquiry under § 2 ... focuses more generally on whether the proposed minority district reasonably comports with ‘traditional districting principles’ such- as contiguousness, population equality, maintaining communities of interest, respecting traditional boundaries, and providing protection to incumbents.”). “The recognition of nonracial communities of interest reflects the principle that a State may not assume from a group of voters’ race that they think alike, share the same political interests, .and will prefer the same candidates at the polls.” LULAC, 548 U.S. at 433, 126 S.Ct. 2594 (internal quotations and alterations omitted).

Thus, to evaluate compactness, the Court considers the dispersion of the relevant minority population, the shape of the proposed district (as measured by a visual evaluation and by statistical measures of compactness) and the causes underlying its shape, and the district’scompliance with traditional redistricting , principles (such as respect for communities .of interest and traditional boundaries). See, Rodriguez, 964 F.Supp.2d, at 737—54; see also Vera v. Richards, 861 F.Supp. 1304, 1341 (S.D. Tex. 1994) (noting that a district’s compactness must be a relative measure based on location and population density and that “[i]n 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, geopolitical subdivisions, and business location”), aff'd sub nom. Bush v. Vera, 517 U.S. 952, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996).

The second and third Gingles preconditions are referred to collectively as “racially polarized voting.” Defendants conceded the existence of racially polarized voting across Texas, except in Nueces and Kleberg Counties, in terms of the fact that minority voters and Anglo voters tend to vote differently. The fact that minority voters and Anglo voters tend to support different candidates in Texas is essentially undisputed and is supported by all the expert testimony in the case, regardless of the methodology used (except with regard to Travis County). However, Defendants dispute whether such racially polarized voting is legally significant in terms of the degree of minority cohesion and Anglo crossover voting, and in terms of whether such racially polarized voting is the result of race as opposed to politics.

If all three Gingles preconditions are satisfied, § 2 requires consideration of the “totality of circumstances” to determine whether members of a racial group have less opportunity than do other members of the electorate. LULAC v. Perry, 548 U.S. 399, 425-26, 126 S.Ct. 2594, 165 L.Ed.2d 609 (2006). The Supreme Court has referred to the Senate Report on the 1982 amendments to the VRA, which identifies factors typically relevant to a § 2 claim, including:

the history of voting-related discrimination in the State or political subdivision; the extent to which voting in the elections of the State or political subdivision is racially polarized; the extent to which the State or political .subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group ...; the extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process; the use of overt or subtle racial appeals in political campaigns; and the extent to which members of the minority group have been elected to public office in the jurisdiction.

Id. at 426, 126 S.Ct. 2594 (quoting S. Rep. No. 97-417 at 117,206). The Report notes also that evidence demonstrating ' that elected officials are unresponsive to the particularized needs of the members of the minority group, and that the policy underlying the State’s or the" political subdivision’s use of the contested practice or structure is tenuous, may have probative value. LULAC, 548 U.S. at 426, 126 S.Ct. 2594.

Last, although § 2 does not guarantee proportional representation, proportionality—whether the number of districts in which the minority group forms an effective majority is roughly proportional to its share of the population in the relevant area—is always a relevant consideration. LULAC, 548 U.S. at 426, 126 S.Ct. 2594; Johnson v. De Grandy, 512 U.S. 997, 1000, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994).

tentional Vote Dilution tí c3 tí O 1*3 tí a) "tí HH

As discussed in this Court’s opinion on Plan C185, the Supreme Court has declined to decide whether the Gingles preconditions apply to intentional vote dilution/discrimination claims under § 2. Docket no. 1390 at 116 (“[T]he Supreme Court expressly stated in Bartlett v. Strickland, 556 U.S. 1, 20, 129 S.Ct. 1231, 173 L.Ed.2d 173 (2009), that it did not consider ‘whether intentional discrimination affects the Gingles analysis’ and that its holding (setting forth the majority-minority requirement to satisfy the first Gin-gles factor for a § 2 results claim) ‘does not apply to cases in which there is intentional discrimination against a racial -minority.’ ”). This Court previously concluded that Plaintiffs are not required to satisfy the first Gingles precondition to prove discriminatory racial gerrymandering and intentional vote dilution, but that the other § 2 factors, including the existence of racially polarized voting and the totality of circumstances, remain relevant to such claims. Docket no. 1390 at 118. The ultimate § 2 inquiry remains whether minority voters have less opportunity to participate in the political processes and to elect candidates of their choice. See Rogers v. Lodge, 458 U.S. 613, 624, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982).

Further, the rubric for analyzing discriminatory purpose under § 2 is the same as under the Equal Protection Clause of the Constitution.- Discriminatory intent is shown when racial discrimination was a motivating factor in the governing body’s decision to adopt or maintain a voting practice or procedure. Brown, 561 F.3d at 433 (“Under the intent-based approach, ‘[r]acial discrimination need only be one purpose, and not even a primary purpose, of an official act’ for a violation [of § 2] to occur.”); Garza, 918 F.2d at 766 (“To the extent that a redistricting plan deliberately minimizes minority political power, it may violate both the Voting Rights Act and the Equal Protection Clause of the fourteenth amendment.”).

B. Fourteenth Amendment claims

Plaintiffs bring two types of claims under the Equal Protection Clause of the Fourteenth Amendment, the central purpose of which “is to prevent the States from purposefully discriminating between individuals on the basis of race.” Shaw v. Reno, 509 U.S. 630, 642, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993). The'first claim is a racial discrimination claim, which requires racially discriminatory intent and discriminatory effect. The second claim is a Shaw-type racial gerrymandering claim, the essence of which is that mapdrawers have separated voters into districts on the basis of race, and which does not require racially discriminatory intent.

1. Intentional Racial Discrimination/Intentional Vote Dilution

.Legislative apportionment schemes may violate the Fourteenth Amendment if “conceived or operated as purposeful devices tp further racial discrimination by minimizing, ■ cancelling out or diluting the voting strength of racial elements in the voting population.” Rogers v. Lodge, 458 U.S. 613, 617, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982) (internal quotations omitted) (affirming district court’s finding that at-large voting scheme, although racially neutral when adopted, was being maintained for the invidious purpose of diluting the voting strength of the black population). A showing of racially motivated discrimination is a necessary element for a successful claim of unconstitutional vote dilution under the Fourteenth Amendment, Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 481, 117 S.Ct. 1491, 137 L.Ed.2d 730 (1997) (citing Mobile v. Bolden, 446 U.S. 55, 66, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980)).

■ Discriminatory intent need not be proved by direct evidence. Rogers, 458 U.S. at 618, 102 S.Ct. 3272. “Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears mofe heavily on one race than another.” Id. (quoting Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 655, 50 L.Ed.2d 450 (1977)). Determining the existence of a discriminatory purpose “demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Id.

Courts should look to the Supreme Court’s decision in Arlington Heights for guidance in analyzing whether invidious discriminatory purpose was a motivating factor in a government body’s decisionmaking. Bossier Parish, 520 U.S. at 488, 117 S.Ct. 1491. The important starting point for assessing discriminatory intent is “the impact of the official action whether it ‘bears more heavily on one race than another.’ ” Id. at 489, 117 S.Ct, 1491. Other relevant considerations include: the historical background of the jurisdiction’s decision, the specific sequence of events leading up to the challenged decision, departures from the normal procedural sequence, and the legislative history, espe-dally any contemporary statements by members of the decisionmaking body. Id.; Arlington Heights, 429 U.S. at 268, 97 S.Ct. 555.

2. “Shaw-type” Racial Gerrymandering Claim

Although a “legislature always is aware of race- when it draws district lines,” Shaw v. Reno, 509 U.S. 630, 646, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993) (emphasis in original), it may not use race as the predominant factor in drawing district lines unless it has a compelling reason. Cooper v. Harris, — U.S. —, 137 S.Ct. 1455, 1463, 197 L.Ed.2d 837 (2017), A Stew-type racial gerrymandering claim is “that race was improperly used in the drawing of the boundaries of one or more specific electoral districts.” Alabama Legislative Black Caucus v. Alabama, — U.S. -, 136 S.Ct. 1257, 1265, 191 L.Ed.2d 314 (2015) (emphasis omitted). In such a claim, the plaintiffs evidentiary burden is “to show, either through circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motiving the legislature’s decision to place a significant number of voters within or without a particular district.” Id, at 1267. The Court’s decision in Bethune-Hill v. Virginia State Bd. of Elections, — U.S. -, 137 S.Ct. 788, 799, 197 L.Ed.2d 85 (2017), additionally made clear that “a conflict or inconsistency between the enacted plan and traditional redistricting criteria is not a threshold requirement or a mandatory precondition in order for a challenger to establish a claim of racial gerrymandering” and that courts should evaluate the predominant motive for the design of the district as a whole.

If race predominates, strict scrutiny applies. To survive strict scrutiny, the challenged districting plan must be narrowly tailored to serve a compelling governmental interest. Bush v. Vera, 517 U.S. 952, 959, 976, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996). For a racial classification to serve a compelling interest, the Legislature must have a strong basis in evidence to support that interest before it implements the classification. Shaw v. Hunt, 517 U.S. 899, 910, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996). Further, the means chosen to accomplish the State’s asserted purpose must be specifically and narrowly tailored to accomplish that purpose. Id. at 908, 116 S.Ct. 1894. To be narrowly tailored, the legislative action must substantially address, if not achieve, the avowed purpose. Id. at 915, 116 S.Ct. 1894.

This Court previously concluded that compliance with § 2 of the VRA constitutes a compelling governmental interest. Docket no. 1390 at 42 (citing Bush, 517 U.S. at 994, 116 S.Ct. 1941 (O’Connor, J., concurring); Clark v. Calhoun Cty., Miss., 88 F.3d 1393, 1405-06 (5th Cir. 1996)). When a State invokes the VRA to justify race-based districting, it “must have a strong basis in evidence for concluding that the three Gingles preconditions exist in order to claim that its redistricting plan is reasonably necessary to comply with § 2.” Clark, 88 F.3d at 1405-06; see also Shaw, 517 U.S. at 915, 116 S.Ct. 1894; Bush, 517 U.S. at 978, 116 S.Ct. 1941 (“The State must have a ‘strong basis in evidence’ for finding that the threshold conditions for § 2 liability [i.e., the Gingles preconditions] are present.”); Harris, 137 S.Ct. at 1471. “If a State has good reason to think that all the Gingles preconditions’ are met, then so too it has good reason to believe that § 2 requires drawing a majority-minority district. But if not, then not.” Harris, 137 S.Ct. at 1470 (citation omitted).

The legislative action must, at a minimum, remedy the anticipated violation or achieve compliance to be narrowly tailored. Shaw v. Hunt, 517 U.S. at 915, 116 S.Ct. 1894. “If a § 2 violation is proved for a particular area, it flows from the fact that individuals in this area ‘have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.’ ” Id. at 917, 116 S.Ct. 1894 (quoting 42 U.S.C. § 1973(b)). The State may “use one majority-minority district to compensate for the absence of another only when the racial group in each area had a § 2 right and both could not be accommodated.” LULAC v. Perry, 548 U.S. 399, 429, 126 S.Ct. 2594, 165 L.Ed.2d 609 (2006).

Compliance with § 5 of the VRA was also a compelling state interest at the time these plans were enacted. However, “a reapportionment plan would not be narrowly tailored to the goal of avoiding retrogression if the State went beyond what was reasonably necessary to avoid retrogression.” Shaw v. Reno, 509 U.S. 630, 655, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993); see also Alabama LBC, 135 S.Ct. at 1274 (noting that the proper question for § 5 nonre-trogression is, “To what extent must we preserve existing minority percentages in order to maintain the minority’s present ability to elect the candidate of its choice?”).

II. Claims based on legislative intent

This case is unusually complex given the Legislature’s enactment in 2013 of the Court’s interim plans. As noted, the 2013 enactment raised questions of mootness in the 2011 plan phase, and now raises difficult questions concerning the proper resolution of Plaintiffs’ Shaw-type and intentional vote, dilution claims in the 2013 plan case.

Although Plaintiffs’ claims focus on specific areas where they have suffered harm, as they must given that racial discrimination and vote dilution claims belong to individuals and not the minority group as a whole, the redistricting plans are statewide plans, and Plaintiffs contend that the statewide plans were adopted with discriminatory intent. In addition, with regard to specific areas in which this Court found Shaw-type violations and intentional discrimination, Plaintiffs contend that such violations remain in the 2013 plans. Defendants contend that the 2013 Legislature could have no discriminatory intent because it simply relied on this Court’s judgment that the plans contained no legal infirmities, despite the interim nature of the plans and the Court’s warnings that its decisions-were necessarily hasty and not based upon a full review of the facts or the law. Defendants assert that the 2013 Legislature’s lack of intent to discriminate in 2013 and the fact that it did not actually draw any districts subject to Shaw-type challenges in the interim plans in 2013 mean that all such claims must fail for lack of the necessary intent.

Defendants’ position incorrectly assumes that -the intent inquiry must be limited to the drawing of district lines in 2013. The Fifth Circuit has rejected such a position: “[C]ases of this circuit emphasize that the search for improper motivation does not end at the enacting stage.” Nevett v. Sides, 571 F.2d 209, 221 (5th Cir, 1978). Rather, the Fifth Circuit has proposed three means by which a plaintiff could meet the purpose standard: A plaintiff could demonstrate either through direct or circumstantial evidence that the government body adopted the electoral scheme with a discriminatory purpose, that the government body maintained the scheme with discriminatory purpose, or that the system furthered pre-existing intentional discrimination. Jones v. City of Lubbock, 727 F.2d 364, 377 (5th Cir. 1984) (discussing Nevett, 571 F.2d at 217-21). Thus, uhder these precedents, although the 2013 Legislature did not draw the challenged districts in Plan ,C235 and Plan H358 (other than HD90), Plaintiffs could nevertheless establish their claim by showing that the Legislature adopted the plans with a discriminatory purpose, maintained the district lines with a discriminatory purpose, or intentionally furthered preexisting intentional discrimination.

In addition, the Supreme Court case of Hunter v. Underwood, 471 U.S. 222, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985), refutes Defendants’ position. - -In Hunter, the Supreme Court held that a felon disenfranchisement provision adopted with discriminatory intent in 1901 violated the Equal Protection Clause in 1985, regardless of the fact, that certain of the more blatantly discriminatory selections had been struck down by the courts, because “its original enactment, was motivated by a desire to discriminate against blacks on account of race and the section continues to this day to have that effect.” Id. at 233, 105 S.Ct. 1916. With .regard to those areas, in Plan C185 and Plan H283 where the Court found that district lines were drawn with impermissible motive and those lines remain unchanged in Plan C235 and Plan H358 such that discrimination continues to have its intended effect, Hunter indicates that those portions of the plans remain unlawful. In those areas, the district lines were motivated by a desire to discriminate on account of race, and they continue to have that effect; thus, they violated 2 and the Constitution. '

Defendants conferid that the Legislature’s adoption of the Court’s interim plans nevertheless removed any such illegality from the plans; they assert that their enactment of the plans in 2013 with no improper motive removes any discriminatory intent. Hunter involved the passage of time and a narrowing of the discriminatory legislation by the courts; it did not involve a later reenactment of the narrowed disenfranchisement law, which is what .Defendants now claim cleanses the plans. Other courts have considered the effect of subsequent legislative enactments on the legislative intent inquiry. The most relevant ease, because it comes from the Fifth Circuit and involves redistricting, is Chen v. City of Houston, 206 F.3d 502 (5th Cir. 2000).

In Chen, the plaintiffs mounted a Shaw-type racial gerrymandering claim against the City of Houston’s districting, and contended that “the 1997 plan substantially maintained the borders of previous plans, and that those borders were set by a process in which race—specifically, the desire to. create two black and two Hispanic single member districts—predominated.” Id. at 513. The plaintiffs argued “that the City violated Shaw by failing to make substantial changes in a districting structure that was originally designed in a manner that race predominated over traditional dis-tricting concerns.” Id, at 518.

The Fifth Circuit rejected thé City’s assertion and the district court’s conclusion •that the intent behind the creation of the prior plans was not properly, before the court. Id. It noted that, in the context of the VRA, “evidence that impermissible racial intent had tainted the plan upon which the challenged plan was based has been allowed, even when enough time has elapsed for a substantíál degree of familiarity arid political reliance to emerge.” Id. The Court then considered "Plaintiffs’ evidence concerning the earlier redistrieting process, but found that its quality fell “far short of-that introduced in .the cases examined by the Supreme Court,” and the Court did not find that-race predominated in the drawing of earlier plans (ie., there was no prior impermissible reliance, on race). Id. Later in the opinion, the Court stated that,

while the district court erred in categorically and totally dismissing evidence of intent garnered from prior plans, it was correct to point out that the state of mind involved in the prior plans is not of itself what is precisely and directly the -ultimate issue before.the Court in this case. We have noted in a different context that while under Hunter the discriminatory intent of the original drafter may carry forward despite subsequent judicial invalidation of the most obviously discriminatory provisions, intervening reenactment with meaningful alterations may render the current law valid.

Id. at 521 (citing Cotton v. Fordice, 157 F.3d 388, 391 (5th Cir. 1998)). It continued, “We do not suggest that the changes implemented in 1993, 1995, and 1997 to the original framework were as 'dramatic as those in Cotton. However, that case broadly stands for the important point that when a plan is reenacted—as opposed to merely remaining on the books like the provision in Hunter—the state of mind of the reenacting body must also be considered.” Id.

Plaintiffs argue that the taint of discriminatory intent is generally removed from amended legislation only where ' a fact-specific inquiry reveals that the new statute was enacted significantly later than the discriminatory one, legislators underwent a “deliberative process” prior. to amendment or reenactment, and the new statute does not continue the same adverse racially disparate impact. E.g., docket no. 1524 at 9-10. While the Court does not agree that' the presence or absence of any of these factors is necessarily dispositive, it agrees that these are relevant considerations for analysis. Based on Chen/Cotton and Hunter, the Court finds the most important consideration is whether the 2011 plans continue to have discriminatory or illegal effect, and whether the reenactment furthers that existing discrimination: “A state law prohibiting exercise of the vote ... is unconstitutional if ‘its original enactment was motivated by a desire to discriminate against blacks on account of race and the section continues to this day to have that effect.’ ” Cotton, 157 F.3d at 391 (citing Hunter, 471 U.S. at 233, 105 S.Gt. 1916) (emphasis added);

In Chen, the Fifth Circuit found no Shaw violation in the original enactment; thus, there was no issue of a continuing harm. Similarly, in Cotton, the . Fifth Circuit noted that the amendments to the felon disenfranchisement statute meant that it no longer targeted “black” crimes and that it “now seeks only to penalize all criminals convicted of certain crimes” such that there was no longer any unconstitutional harm flowing from the statute. Cotton, 157 F.3d at 392.

Here, in contrast, specific portions of the 2011 plans that this Court has found to be discriminatory or unconstitutional racial gerrymanders continue unchanged in the 2013 plans, their' harmful effects “eon-tinu[ing] to this day.” Hunter, 471 U.S. at 233, 105 S.Ct. 1916. The fact that this Court made changes to the statewide plans and the Legislature then ' adopted the Court’s plans does hot change this fact. Further, the Legislature did not engage in a deliberative process to ensure that the 2013 plans cured any taint from the 2011 plans. No changes were made to the congressional plan, and changes to the House plan were subject to severe constraints, rendering them largely cosmetic. Although this Court did not rule out the possibility that coalition districts could be required or that the County Line Rule would have to yield to the VRA, the Legislature continued its steadfast refusal to consider either possibility. And despite the findings of discriminatory intent by the D.C. Court, there is no indication that the Legislature looked to see whether any discriminatory taint remained in the plans. Instead, the Legislature pushed the redistricting bills through quickly in a special session. Rep. Martinez Fischer testified that necessary resources were not allocated to support a true deliberative process.

Moreover, the adoption of the interim plans intentionally furthered and continued any discrimination that might be found in the 2011 plans and incorporated into the 2013 plans. The Legislature did not adopt the Court’s plans with the intent to adopt legally compliant plans free from discriminatory taint, but as part of a litigation strategy. Defendants had steadfastly maintained that their 2011 plans had no legal infirmities—throughout this litigation in 2011, when sponsoring the compromise plans in 2012 that became the interim plans,' and thereafter. Although the D.C. Court found that the 2011 plans violated § 5 of the VRA and cited evidence of discriminatory intent, Defendants did not accept those rulings and instead appealed to the Supreme Court. Yet upon the urging of the Attorney General, who was responsible for the litigation in this court, they decided to adopt the interim maps.

The decision to adopt the interim plans was not a change of heart concerning the validity of any of Plaintiffs’ claims in either this litigation or the D.C. Court litigation and was not an attempt to adopt plans that fully complied with the VRA and the Constitution—it was a litigation strategy designed to insulate the 2011 or 2013 plans from further challenge, regardless of their legal infirmities. The letter from then-Attorney General Abbott to Speaker Joe Straus makes the strategy clear: Abbott advised that the “best way to avoid further intervention from federal judges in the Texas redistricting plans” and “insulate the State’s redistricting plans from further legal challenge” was to adopt the interim maps. Quesada-57; DX-858. Thus, Defendants sought to avoid any liability for the 2011 plans by arguing that they were moot, and sought to ensure that any legal infirmities that remained in the 2013 plans were immune from any intentional discrimination and Shaw-type racial gerrymandering claims.

Defendants knew that most Plaintiffs would maintain claims against the interim plans if adopted, despite the changes, .and that such challenges might indicate that further changes to the maps were required. With regard to the. interim plans, Abbott’s letter does not say that the plans cure legal infirmities in the plan, only that they “have the approval from the federal judges overseeing this litigation.” Id. Although this Court had “approved” the maps for use as interim maps, given the severe time constraints it was operating under at the time of their adoption, the Court clearly warned that its preliminary conclusions, which were based on the pre--liminary injunction “likelihood of success” standard, were, not based on a full examination of the record or the governing law and were subject to revision.

The Legislature’s own attorney, Jeff Archer, advised them accordingly. JX-14.4 at 6-19; id. at 11 (noting that this Court was “in a little bit [of a] tricky [position] because the Court had not made full determinations, ... had not madé fact findings on every issue, had not thoroughly analyzed all the evidence but they had to make some best case guesses .... ”); id, at 11-12 (the Court’s caveats were “as if to say this is the best we can do now. We haven’t gotten to the bottom of things.”); id. at 12 (noting'that the Court was not making final determinations, that , the Court noted unsettled and difficult legal issues and factual disputes, and “essentially made it explicitly clear that this was an interim plan to address basically first impression of voting rights issues”). Given the remaining legal challenges and this Court’s warnings that the interim maps were enacted without a full review of the facts or the law, a reasonable construction of this Court’s orders leaves the definite possibility that, upon full review, additional changes would be required to the interim plans in response to legal, infirmities.

Moreover, given the D.C. Court’s findings of intentional discrimination, Defendants saw a very real possibility that this Court would likewise find that the 2011 plans were the product of discriminatory intent. Rather than trying to cleanse the plans of continuing discriminatory intent or legal defect, Defendants’ strategy involved adopting the interim maps, however flawed, arguing that the 2011 plans would never go into effect and thus could have no harmful effects, and arguing that the 2013 plans could have no impermissible intent such that, whatever possible or likely discriminatory or unconstitutional effects remained in those plans, Plaintiffs would have no remedy, and Defendants would maintain the benefit of such discrimination or unconstitutional effects. By arguing that there may have been intent but no effect in 2011 and there may have been effect but no intent in 2013, despite the fact that there is unquestionably both intent and ongoing effect, Defendants’ actions in 2013 were attempting to prevent Plaintiffs from obtaining relief for purposeful racial discrimination.

In Defendants’ view, Plaintiffs could obtain no relief for the - Legislature’s past discrimination in 2011, and any discriminatory intent and effects remaining in the 2013 plans; however harmful, would be safe from challenge. This strategy is discriminatory at its heart and should not insulate either plan from review. Cf. Kirksey v. Bd. of Sup’rs of Hinds Cty., Miss., 554 F.2d 139, 146-47 (5th Cir. 1977) (“Where a plan, though itself racially neutral, carries forward intentional and purposeful discriminatory denial of access that is already in effect, it is not constitutional. Its benign nature cannot insulate the redistricting government entity from the existent taint. If a neutral plan were permitted to have this effect, minorities presently denied access to political life for unconstitutional reasons could be walled off from relief against continuation of that denial”).

In sum, the Court concludes that the racially discriminatory intent and effects that it previously found in the 2011 plans carry over into the 2013 plans where those district lines remain unchanged. The discriminatory taint was not removed by the Legislature’s enactment of the Court’s interim plans, because the Legislature engaged in no deliberative process to remove any such taint, and in fact intended any such taint to be maintained but be safe from remedy. The Legislature in 2013 intentionally furthered and continued the existing discrimination in the plans.

III. Dallas-Fort Worth area (“DFW”) Claims

Plaintiffs brought § 2 results claims and intentional vote dilution claims, as well as Fourteenth Amendment racial discrimination claims against the DFW districts in Plan C185. Interim Plan C235 made significant changes to the DFW area to address the “not insubstantial” § 5 discriminatory purpose claims of packing and cracking. Plaintiffs alleged that CD30, the only minority district, was packed, while “fingers” from surrounding Anglo-majority districts reached into urban and suburban Dallas and Tarrant County areas to crack minority communities and subsume them in Anglo-dominated districts. As a result, despite its substantial minority population, the DFW metroplex had only one minority opportunity district (CD30) that performed for African Americans, and none for Latino voters.

To address the § 5 discrimination claims, Plan C235 included new CD33, spanning Dallas and Tarrant Counties. Plan C235 withdrew many of the encroachments into minority communities from the Anglo districts surrounding DFW, and the population left behind in DFW from the removed encroachments was placed in new CD33, while accommodating congressional incumbents and taking into account population growth. Docket no. 691 at 36-37. In addition, the minority population of CD30 was decreased somewhat to address the packing allegations, with the Court noting that the H+BVAP of CD30 was 76.7% in the benchmark, 81.5% in Plan C185, and 75.9% in Plan C235. Id. at 37 & n.83. Given the unsettled law and the inability to look at all the necessaiy factual evidence, the Court was unable to conclude at the time that Plaintiffs were likely to succeed on their § 2 claims premised upon coalition districts. It also found that the Task Force Plaintiffs were not likely to succeed on their claim that a Latino opportunity district was required because their proposed HCVAP-majority district (CD6 in Plan C190) was not compact.

In the Opinion on Plan C185, this Court found that Plaintiffs failed to prove their § 2 results claims in DFW because they failed to satisfy the first Gingles precondition for the Latino and coalition districts insofar as none of the proposed districts were compact. Docket no. 1390 at 58-92. The Court did find that mapdrawers violated the Equal Protection Clause by improperly using race in drawing CD26 in violation of the Shim line of cases. And, it found that mapdrawers acted with racially discriminatory intent and intentionally diluted minority voting strength in DFW by intentionally packing and cracking minorities. Docket no. 1390 at 146. Specifically, the Court found that minorities were moved into CD30 to waste their votes, while Anglo voters were moved out of CD30 and into neighboring districts to shore them up as Republican districts, and that mapdrawers' drew and then divided a proposed minority district in the DFW area to minimize current and future minority voting power.

The Plaintiffs’ packing and cracking intentional discrimination/dilution claim in this case is essentially the same “not insubstantial” § 5 discriminatory purpose claim that the Court attempted to remedy in Plan C235, but certain Plaintiffs complain that the discrimination is not fully remedied. They contend that packing and cracking remain, intended to prevent the emergence of an additional minority district or districts. Plaintiffs assert' that two or three minority opportunity districts are required in addition to CD30 and that the DFW configuration intentionally limits minority opportunity to two districts when more opportunity districts can easily be drawn. The Quesada Plaintiffs further contend that the Legislature intentionally discriminated by knowingly reaffirming discriminatory features identified by the D.C. Court, including specifically the cracking of minority populations in Arlington and Grand Prairie.

As explained in the Court’s order adopting Plan C235, CD33 was not intentionally drawn as a minority coalition district under § 2. Rather, it was created to remedy the alleged intentional discrimination (cracking) claims by removing the fingers from the Angló-majority districts that reached into Dallas and Fort Worth. However, it is majority-minority CVAP when Black and Hispanic CVAP are combined, and it has elected an African-American, Marc Veasey. It has thus performed as a minority coalition district under most Plaintiffs’ view that such districts require minority cohesion only'in the general elections. On this basis, the Court concluded in its Order on Plan C185 that Plaintiffs’ claims that one minority Coalition district was required in DFW (in addition to African-American district CD30) were moot.

However, Plaintiffs continue to assert that more minority opportunity districts are required in DFW, especially one that can elect a Latino candidate of choice in the primary and general elections, to reflect the Latino growth in the area. Certain Plaintiffs contend that CD33 does not provide Latino opportunity because of its failure to elect the Latino-preferred candidate in the primary despite its HCVAP.

Defendants contend that (1) there is no evidence of dilutive intent in 2018, (2) no single-minority-majority-CVAP district can be drawn and coalition districts are not required by § 2, and (3) even if coalition districts were required, the record refutes the existence of cohesive voting between Hispanic and African-American voters in the DFW area, as shown primarily by the results of Democratic primaries. Docket no. 1526 at 81-82. The Court has already rejected Defendants’ position that coalition districts can never be required by § 2, and does not repeat its analysis here. And the doctrine of constitutional avoidance counsels that this. Court should address the statutory § 2 effects claim before analyzing Plaintiffs’ constitutional claim. The Court thus considers whether Plaintiffs have satisfied the Gingles criteria.

Plaintiffs agree that, despite the strong minority population growth in DFW, it is not possible to draw an additional compact single minority-majority CVAP district. This is due primarily to the fact that minority populations' are interspersed with each other, although these mixed minority populations are geographically concentrated. As a result, each of the proposed demonstration maps creates new minority coalition districts. The Court did not reach the issue of minority cohesion in proposed coalition districts in its prior orders because Plaintiffs did not clear the first Gingles hurdle. But the issue is now squarely presented. The Court acknowledges that the evidence presented in this case cuts both ways and the decision is close, but the Court cpncludes that Plaintiffs have not proved the necessary cohesion.

A. § 2 Results Claims