CONFIDENTIAL ATTORNEY-CLIENT PRIVILEDGED COMMUNICATION
Memorandum to RNC Chief Counsel
This is a brief summary of the Texas congressional redistricting situation as of
this last Tuesday, June 7, 2011.
It is important to keep in mind that a bill has not been passed out of both
Chambers and there is still time for improvements to be made – although at this
writing, that possibility seems remote.
The last plan examined, Texas Legislative Council’s Plan C136, contained
significant retrogression of the minority voting age population in several
districts and failed to create any new Latino districts which contain a majority of
Latino voters. There is no new Latino district in the Dallas-Fort Worth area –
with all the Latino and African populations not contained in Congresswoman
Johnson’s District (30-D) being fractured between GOP districts in the area.
Although the previous problem of retrogression of Latino voting strength in
Gene Green’s Houston District 29 has been solved; it has been done at the
expense of a decrease in the Latino strength in African-American
Congresswoman Jackson-Lee’s 29th District. Latinos make up an important
component of the voting age population in this coalition district – a fact that the
GOP used to justify its configuration containing two African-American Houston
districts in 2003. We are worried that DOJ will strongly object to this
retrogression.
Congressman Gonzales’ 20th District in San Antonio has been significantly
retrogressed from benchmark and, when we last looked at it, the Latino voter
registration was below 50% (which may have been corrected by now). Even so,
there is sufficient cause for an objection by DOJ.
The newly created 35th District, which runs from San Antonio to Austin, has
lower Latino strength than is possible – including Latino voter registration well
under 50%. It is clearly possible to create a much stronger district.

 All these deficiencies can be corrected, although the creation of a new Dallas-Ft.
Worth Latino-African American coalition district (with Latino voter registration
in the mid-40% range, but much higher than either the African-American or
Non-Hispanic White Democrat voter registration percentages) would come at
the expense of the creation of an additional GOP seat.
The Democrats will have no trouble pointing to the fact that the GOP is well
aware of ALL the possibilities available to fix these deficiencies, with many of
them already on our record. In addition, MALDEF has already submitted its own
maps into the record. Proving intent will be no problem for them.
All these deficiencies point to a certainty rejection of the plan by DOJ, as well as
likely rejection by the District Court in the District of Columbia (DCDC). There is
little doubt that if Texas’ Attorney General files for preclearance in the DCDC
(even if he files simultaneously at DOJ), there will be a full trial with a final
decision not be expected until late November.
The only way that preclearance could be obtained in a shorter timeframe would
be to enact a plan with two new Latino districts and all other districts at
benchmark. This would create a good possibility that the DCDC (or even DOJ,
for that matter) would approve the map in a summary judgment, as there
would be nothing left for DOJ to legitimately oppose in the DCDC setting. If
preclearance is only pursued at DOJ there will be, most likely, a longer list of
objections. This distinction is important if the plan is drawn in either a federal
or state court in Texas.
All this points to a high probability that the congressional map used in the 2012
elections will be drawn by a 3-judge federal panel before litigation is concluded
in the DCDC, as even a plan drafted by a Texas state court must be precleared).
If the Texas federal court drafts a map, it is required to remedy all DOJ’s
objections in its map – as it has no jurisdiction over Section 5 of the VRA. If
litigation is not completed in the DCDC, it would not be compelled to give
deference to the new plan enacted by Texas, but not precleared.

 If the state court drafts a map favorable to the GOP (it must also remedy DOJ’s
objections), there is little chance of DOJ preclearance. If it drafts a map
favorable to the Democrats it will, most likely, be swiftly precleared.
The Texas Legislature is clearly about to embark into dangerous legal waters
unless significant modifications are made to the map. These changes are not
technically difficult, but may be difficult from a political standpoint.
I feel that the Texas Attorney General’s Office understands these perils, but may
not be in a position to fully guide its client, the Legislature, into a safe harbor –
one into which they do not wish to sail.
It is important to remember that, as is the case with homeland security, we
must be 100% right to win; but the other side only needs one good mistake on
our part to stall us and decrease our possible seat gains by forcing the remap
into the Texas federal court.
So far the Democrats and their allies a reported to be delighted with the GOP’s
map, as they think it can be easily “blown up”, and will not serve as a
counterweight to our losses in the Illinois Democratic redraw.
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