IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
HONORABLE TERRY
PETTEWAY,
HONORABLE DERRECK ROSE,
HONORABLE MICHAEL ROSE,
HONORABLE PENNY POPE,
HONORABLE SONNY JAMES, and
ROOSEVELT HENDERSON,

§
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Plaintiffs,
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VS.
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GALVESTON, TEXAS; and
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THE HONORABLE MARK
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HENRY, in His capacity as Galveston §
County Judge
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Defendants.
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Civil Action no. 3:13-cv-00308

DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT
Defendants Galveston County and The Honorable Mark Henry, in his
official capacity as Galveston County Judge, (“Defendants” or “Galveston
County”) Defendants hereby move the Court to dismiss the complaint and would show
as follows:
PRELIMINARY STATEMENT
This case arises from the Galveston County Commissioners Court exercise
of its authority pursuant to the laws and Constitution of the State of Texas to
redistrict and establish the precincts for election of Justices of the Peace and
1

 Constables for Galveston County.
FACTUAL BACKGROUND
According to the 2010 U.S. Census, Galveston County, Texas had a total
population of 291,309 people. The county had a total Black or African American
population of 40,112, or 13.8% of the total population, and a total Hispanic or
Latino population of 65,270, or 22.4% of the total population. The Non-Hispanic
White population of the county was 211,088, or 72.5% of the total population.
The most recent data from the American Community Survey – 2011 –
showed a total citizen voting age (CVAP) population of 200,480 for Galveston
County, Texas. Of that total number the CVAP for the Black or African American
population was 28,890, or 14.41% of the total CVAP, and the CVAP for the
Hispanic or Latino population was 30,350, or 15.14% of the total CVAP.
Combined, the CVAP for the Black or African American and Hispanic or Latino
population was 59,240, or 29.55% of the total CVAP.
Prior to the August 2013 adoption of new districts, Galveston County had
eight justice of the peace districts served by nine justices of the peace1 and eight
constables. Of those eight justices of the peace districts, two had a combined
African-American and Hispanic CVAP majority, precincts 2 and 3. Each of these
districts elected a minority justice of the peace, Plaintiffs Pope and James, and
1 One of the justice of the peace districts – precinct 8 – had two places that were elected at-large from within the
district.

2

 minority constables, Plaintiffs Petteway and Rose.2. Plaintiff Montez was elected
in a majority non-Hispanic white district.
The previous nine justices of the peace experienced varying degrees of
caseload. According to data published in the Annual Statistical Report for the
Texas Judiciary for Fiscal Year 2012 published by the Texas Office of Court
Administration and the Galveston County budget proposals for fiscal year 2014 the
following chart shows the average total caseload of each of the former justice of
the peace courts:
Precinct 1
Precinct 2
Precinct 3
Precinct 4
Precinct 5
Precinct 6
Precinct 7
Precinct 8, Place 1
Precinct 8, Place 2

8.13%
2.10%
7.60%
17.71%
16.51%
7.18%
19.31%
20.4%
1.73%

Precincts 2 and 3 are the only majority minority districts in the previous
election scheme and they constitute two of the three lowest caseload districts.
Beginning in 2011, the Galveston County Commissioners Court undertook

2 Recent vote dilution theory has identified only two types of districts which are legally cognizable, a single race
majority minority district, and a coalition of two or more minorities voting cohesively together so as to constitute a
majority minority district. Two other types of districts have been unsuccessfully suggested by Plaintiffs over the
years: a “crossover” district where minorities make up less than a majority but are able to elect minority candidates
with the assistance of majority race voters who "crossover", and “influence” districts in which minority race voters
are incapable of electing candidates of choice that can influence the election of other candidates. The Supreme
Court "has held that § 2 does not require the creation of influence districts." Nor does it require the creation of
crossover districts. Bartlett v. Strickland, 556 U.S. 1, 13 (2009) citing LULAC v. Perry, 548 U.S. 399, 445 (2006).
See also Bartlett at 13 n.4.

3

 to redistrict the justice of the peace districts with the goal of reducing the number
of justices of the peace to achieve financial savings and a balanced caseload.
Specifically, Galveston County held five public hearings, a majority of which were
attended by every current member of the Commissioners Court, about justice of the
peace redistricting in different parts of the County.
In 2011 and, as mentioned previously, 2013, Galveston County collected and
reviewed caseload and other operational data about its justice of the peace courts
from the Texas Office of Court Administration.
Prior to August 2013, members of the Commissioners Court met
individually with every sitting Galveston County Justice of the Peace, sometimes
multiple times, to discuss the structure, staffing and general operations of each
individual court. Additionally, members of the Galveston County Commissioners
Court met with the County’s Justice Administration Department to discuss the
operations of the justice of the peace courts and to review caseload data maintained
by the department.
Finally, on August 16, 2013, Defendants caused to be posted a public notice
of a special meeting of the Galveston County Commissioners Court to consider the
adoption of new Justice of the Peace maps for Galveston County to be held on
August 19, 2013. Prior to the August 19, 2013 meeting, Defendants maintained
eight Justice of the Peace Precincts which were served by nine Justices of the
4

 Peace and eight Constables.
At the August 19, 2013 meeting of the Galveston County Commissioners
Court, Defendants proposed a new map of Justice of the Peace Precincts which
was drawn by a demographic expert, Thomas Hofeller, Ph.D., hired by legal
counsel for Galveston County. The new map essentially combined precincts 1, 2
and 3. It also combined precincts 4 and 6. The map then adjusted these two new
districts with the remaining three precincts to make a total of four districts
precincts in an effort to equalize caseload while at the same time maintaining and
enhancing the ability of minority voters to elect candidates of their choice.
Public testimony from citizens of Galveston County was taken on the
proposed maps and the County Commissioners Court discussed how a reduction in
the number of the justice courts would best serve the interest of the people of the
county and significantly reduce the cost of operating that court system while
simultaneously freeing up resources to dedicate to other county administrative
matters. Additionally, members of Commissioners Court discussed whether the
county would be best served by reducing the number of county courts to balance
the caseload of the Justices of the Peace.
Following this testimony and deliberations by members of Commissioners
Court, on August 19, 2013, by a vote of four to one Commissioners Court enacted
the order, attached as Exhibit 1, which adopted the map complained of in this
5

 litigation and thereby established new precinct boundaries for the election of
justices of the peace and constables and abolished the offices of five Justices of the
Peace and four Constable.
LEGAL ARGUMENTS AND AUTHORITIES
I.

The Claims Cannot Withstand the Standard for Dismissal for Failure
to State a Claim Under Fed R. Civ. P. 12(b)(6)
The court has authority to dismiss a suit for failure to state a claim upon

which relief can be granted if the Complaint does not state factual allegations
showing that the right to relief is plausible and above mere speculation. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555-556 (2007); Ashcroft v. Iqbal, 556
U.S. 662, 677-79 (2009); FED. R. CIV. P. 12(b)(6). In Twombly, the Supreme Court
stated:
While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, ibid.;
Sanjuan v. American Bd. of Psychiatry and Neurology,
Inc., 40 F.3d 247, 251 (C.A.7 1994), a plaintiff's
obligation to provide the “grounds” of his “entitle[ment]
to relief” requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action
will not do, see Papasan v. Allain, 478 U.S. 265, 286,
106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to
dismiss, courts “are not bound to accept as true a legal
conclusion couched as a factual allegation”). Factual
allegations must be enough to raise a right to relief above
the speculative level, see 5 C. Wright & A. Miller,
Federal Practice and Procedure § 1216, pp. 235-236 (3d
ed. 2004) (hereinafter Wright & Miller) (“[T]he pleading
must contain something more ... than ... a statement of
facts that merely creates a suspicion [of] a legally
6

 cognizable right of action”), on the assumption that all
the allegations in the complaint are true (even if doubtful
in fact), see, e.g., Swierkiewicz v. Sorema N. A., 534 U.S.
506, 508, n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) …
Id. at 1964 (footnote omitted). As such, a complaint must “contain either direct
allegations on every material point necessary to sustain a recovery … or contain
allegations from which an inference fairly may be drawn that evidence on these
material points will be introduced at trial.” See Loofbourrow v. Commissioner of
Internal Revenue Serv., 208 F. Supp. 2d 698, 709 (S.D. Tex. 2002) (quoting
Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995)). A plaintiff
must plead enough facts to state a claim that is plausible on its face. Reliable
Consultants, Inc. v. Earle, 517 F.3d 738, 742 (5th Cir. 2008); Guidry v. American
Pub. Life Ins. Co., 512 F.3d 177, 180 (5th Cir. 2007). The plausibility standard
requires more than a sheer possibility that a defendant has acted unlawfully.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Legal conclusions are not “entitled to
the assumption of truth.” Id.
To avoid dismissal under Rule 12(b)(6), Plaintiff must plead specific facts,
not mere conclusory allegations. Loofbourrow, 208 F. Supp. 2d at 708-709. A
statement of facts that merely creates a suspicion that the Plaintiff might have a
cause of action is insufficient. Campbell, 43 F.3d at 975. This Court is “not
required to conjure up unpled allegations or construe elaborately arcane scripts to
save a complaint.” Id. (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st
7

 Cir. 1988)). Dismissal is appropriate if the live complaint lacks an allegation of an
essential element necessary to obtain relief. Campbell, 43 F.3d at 975.
II.

Claims should be Dismissed because the new redistricting plan
provides proportional representation which give full effect to the
appropriate strength of the minority voters in the County
While the Voting Rights Act prohibits "any redistricting scheme which

minimizes or dilutes the voting strength of racial minorities,"3 it does not require
proportional representation of minority population either. The Voting Rights Act
and its legislative history specifically disclaim any congressional intent to establish
any right to have members of a protected class elected in numbers equal to their
proportion in the population.4 Nor does the statute require that either legislatures
or courts impose a quota system for the election of minorities. 42 U.S.C. §1973(b).
But in analyzing this area, the Supreme Court has also recognized "an inherent
tension between what Congress wished to do and what it wished to avoid, because
any theory of vote dilution must necessarily rely to some extent on a measure of
minority voting strength that makes some reference to the proportion between the
minority group and the electorate at large." Thornburg v. Gingles, 478 U.S. 30, 84
(1986) (O'Connor, J., concurring). Proportionality is not a right under §2, however
3 Parker, Racial Gerrymandering and Legislative Reapportionment, MINORITY VOTE DILUTION 86 (C. Davidson,
ed. 1984), citing Robert G. Dixon, Ir., DEMOCRATIC REPRESENTATION: REAPPORTIONMENT IN LAW AND POLITICS
460 (1968).
4 “Nothing in this section [§2] establishes a right to have members of a protected class elected in numbers equal to
their proportion in the population.” 42 U.S.C. §1973(b)(1982); See McGhee v. Granville County, N.C., 860 F.2d
110, 117 (4th Cir. 1988). This was an area of intense debate when the 1982 Amendments were passed and was
added so that “it puts to rest any concerns that have been raised about racial quotas.” S. REP. No.417, 97th Cong.,
2d Sess. (1982), reprinted in 1982 U.S. CODE CONG. & ADMIN. NEWS.

8

 it can serve as a defense. Johnson v. DeGrandy, 512 U.S. 997, 1021 (1994).
While the Supreme Court has refused to treat proportionality as absolute “safe
harbor” for jurisdictions it does use proportionality as a critical factor in the
analysis of what a “fair non-dilutive plan” would be so that it is a practical, if not a
per se, “safe harbor.”5 It should be noted that providing minority representation in
excess of proportionality, even if that excess were generated by influence districts,
would appear to be exactly the situation described in United Jewish Organizations
of Williamsburgh, Inc. v. Carey, 430 U.S. 144 (1977) as creating the type of
situation which would allow majority race voters to assert a vote dilution claim
under the 14th Amendment and arguably even under the Voting Rights Act. This
has caused other courts to note "a group that has electoral power, in the sense of
power to elect the representatives of its choice, equal to its fraction of the
electorate will be hard-pressed to demonstrate, and has not demonstrated in this
case, that its members nevertheless have less opportunity than other members of
the electorate to elect representatives of their choice.” Barnett v. City of Chicago,
141 F.3d 699 (7th Cir. 1998) cert. denied, 524 U.S. 954 (1998). Furthermore, we
can find no court that has found a districting plan as dilutive under §2 where the
jurisdiction provided proportional or very nearly proportional representation since
5 “It is enough to say that, while proportionality in the sense used here is obviously an indication that minority
voters have an equal opportunity, in spite of racial polarization, ‘to participate in the political process and to elect
candidates of their choice,’42 U.S.C. §1973(b) the degree of probative value assigned to proportionality may vary
with other facts. No single statistic provides courts with a shortcut to determine whether a set of single member
districts unlawfully dilutes minority voting strength.” Johnson v. DeGrandy, 512 U.S. 997, 1021 (1994).

9

 the decision in DeGrandy which was further validated by Justice Kennedy’s
decision for the Court in LULAC v. Perry, 548 U.S. 399 (2006).6
It is quite clear in the Fifth Circuit that the frame of reference for assessing
proportionality in a redistricting map is citizen voting age population (CVAP). The
Fifth Circuit in Campos v. City of Houston 113 F.3d 544 (5th Cir. 1997), denied
relief to Hispanics claiming vote dilution because "Houston's current electoral
scheme has enabled its Hispanic community to elect city council members in
greater than proportional numbers, based on its citizen voting age population.
Campos at 548. The Fifth Circuit has also cited favorably in Perez v. Pasadena
Independent School District, 165 F.3d 368, 372 (5th Cir. 1999), the Seventh Circuit
case of Barnett v. City of Chicago, 141 F.3d 699 (7th Cir. 1998) cert. denied, 524
U.S. 954 (1998). "We think that citizen voting age population is the basis for
determining the equality of voting power that best comports with the policy of
[§2]." Perez at 372 quoting Barnett at 704.
The Barnett court is quite explicit in outlining the policy reasons why citizen
voting age is the only logical frame of reference. The court accurately describes
plaintiffs’ argument when it states: "we should decide, therefore, before going any
further, which population basis should be used in determining whether the
6 In LULAC Justice Kennedy determined that the proper geographic frame of reference was: “We conclude the
answer in these cases is to look at proportionality statewide.” LULAC at 437. Which in this case would be the entire
jurisdiction, i.e. Galveston County. Justice Kennedy also makes it clear that when examining proportionality issue
he is using CVAP as his population basis: "[l]ooking statewide, there are 32 congressional districts. The five
reasonably compact Latino opportunity districts amount to roughly 16% of the total, while Latinos make up 22% of
Texas' citizen voting age population." LULAC at 438.

10

 distribution of effective majority status is proportional to population. The concept
of virtual representation argues for using total population… it is assumed that
citizen and noncitizen Latinos have a strong community of interest, then giving
citizen Latinos extra voting power based on the number of noncitizen Latinos gives
the latter a kind of representation in the political process… neither the census nor
any other policy or practice suggests that Congress wants noncitizens to participate
in the electoral system as fully as the concept of virtual representation would
allow… [t]he right to vote is one of the badges of citizenship. The dignity and
very concept of citizenship are diluted if noncitizens are allowed to vote either
directly or by the conferral of additional voting power on citizens believed to have
a community of interest with the noncitizens…" Barnett at 704. See also Negron
v. City of Miami Beach, 113 F.3d 1563, 1567-69 (11th Cir. 1997); Romero v. City of
Pomona, 883 F.3d 1418, 1425-26 (9th Cir. 1989).
The combined Hispanic and African-American citizen voting age population
in Galveston County is only 29.55%. The previous justice of the peace and
constable districting scheme had two districts which were majority minority, when
the Hispanic and African-American citizen voting age population were combined.
Two districts is 25% of the eight districts and an even a smaller percentage of the
nine justices of the peace. These are both coalition districts. For the purposes of
this motion, Defendants will assume that the Hispanic and African-American
11

 communities vote sufficiently cohesively so as to constitute a majority minority
district. However, Defendants do not concede for the purposes of this litigation
that such cohesion and the nature of that cohesion has been proven.
Twenty five percent is only 4.55% less than the entire combined CVAP
minority population in Galveston County. In fact the math dictates that under any
legal §2 or 14th amendment redistricting plan at most two districts out of either
nine or eight would have been legally appropriate and that 25% of the districts
would have constituted the full extent of legally required representation since no
dilution of the minority vote could be taking place at that percentage.
Under the current four-district plan for Galveston County justice of the
peace and constable districts, one district has a combined CVAP minority
population which amounts to a majority within that district. Plaintiffs have not
disputed that this district is capable of electing the minority communities’
candidate of choice. One district out of four constitutes 25% of the representation
in exactly the same manner that two districts out of eight constitutes 25%. As set
out above, the well-established precedent of the United States Supreme Court and
the Fifth Circuit means that a districting plan for justices of the peace and
constables which provides for a CVAP majority minority district that constitutes
25% of the total districts cannot be vote dilution under §2 or the 14th and 15th
amendments. This is true regardless of whether the redistricting plan contains
12

 eight or four districts because there is no dilutive harm which can be alleged. It is
clear as a matter of law that the current four district plan provides the minority
communities in Galveston County an equal opportunity with other voters in the
county to elect candidates of their choice to the offices of justice of the peace and
constable. Plaintiffs’ failure to allege properly a dilution claim is both
understandable and a fatal defect under Rule 12(b)(6). The complaint must be
dismissed.
III.

Plaintiffs have failed to allege facts that meet the first threshold
Gingles prong.

While from the discussion above is clear that Plaintiffs can never state a
claim for vote dilution on the facts of this case it is also clear that they cannot meet
as a matter of law the first Gingles prong and have not pled facts sufficient to make
out such a claim. The basic elements of the §2 claim are described in Thornburg v.
Gingles, 478 U.S. 30 (1986) where Justice Brennan, in a plurality opinion, writing
for the Court,7 noted that "[the] essence of a §2 claim is that a certain electoral law,
practice, or structure interacts with social and historical conditions to cause an
inequality in the opportunities enjoyed by black and white voters to elect their
preferred representatives." Thornburg v. Gingles, 478 U.S. 30, 47 (1986).
Brennan then set out the "necessary preconditions" to prove that multimember

7 478 U.S. 30 (1986). Four Justices, White, Marshall, Blackmun, and Stevens, concurred with Justice Brennan in
the critical portion of his opinion (§IIB).

13

 districts in various areas of North Carolina impair minority voters' ability to elect
representatives of their choice:
 First, the minority group must be able to demonstrate that it is sufficiently
large and geographically compact to constitute a majority in a singlemember district ….
 Second, the minority group must be able to show that it is politically
cohesive.…
 Third, the minority must be able to demonstrate that the white majority votes
sufficiently as a bloc to enable it--in the absence of special circumstances,
such as the minority candidate running unopposed--usually to defeat the
minority's preferred candidate. Thornburg v. Gingles, 478 U.S. 30, 50-51
(1986).
 Finally, Justice Brennan noted that "the usual predictability of the majority's
success distinguishes structural dilution from the mere loss of an occasional
election." Thornburg v. Gingles, 478 U.S. 30, 51 (1986).
Justice O’Connor wrote an opinion, concurring in the judgment, which also
accepted the three-part test as a threshold requirement, which would only then
trigger an examination of the ‘totalities of the circumstances’ test.8 The application
of the three part test as threshold has been validated for both multi-member and
single-member districts in Growe v. Emison, 507 U.S. 25 (1993), and Voinovich v.
Quilter, 507 U.S. 146 (1993), making Justice O’Connor’s opinion the real opinion
of the Court today.
What constitutes a district that is "sufficiently large and geographically
compact to constitute a majority in a single-member district" has been significantly
8 Gingles at 83, O’Connor concurring.

14

 refined by both the Fifth Circuit and the Supreme Court in the decades following
Gingles. A series of Fifth Circuit cases -- Campos v. City of Houston, 113 F.3d 544
(5th Cir. 1997); Valdespino v. Alamo Heights Independent School Dist., 168 F.3d
848 (5th Cir. 1999) cert. denied, 528 U.S. 1114 (2000); Perez v. Pasadena
Independent School District, 165 F.3d 368 (5th Cir. 1999) contain clear statements
of the stringent requirements to challenge a redistricting plan. To meet the first
Gingles threshold element a plaintiff must be able to prove that it can create an
additional compact citizen voting age (CVAP) majority minority district. The
Supreme Court subsequently validated the position of the Fifth Circuit in LULAC
v. Perry, 548 U.S. 399 (2006) and Bartlett v. Strickland, 566 U.S. 1 (2009).9
Nowhere in Plaintiffs’ complaint do they allege the existence of an
alternative redistricting map that provides an additional CVAP majority minority
district that will result in more appropriate representation for the minorities in
Galveston County without over representing those minorities. Unless Plaintiffs
can meet the first Gingles prong, they cannot make out a cause of action.
Voinovich v. Quilter, 507 U.S. 146 (1993). Plaintiffs failure to allege the existence
of an additional majority minority district means they have failed to meet the

9 See also Pender County v. Bartlett, 361 N.C. 491, 510 (N.C. Sup. Ct. 2007), aff’d sub nom, Bartlett v. Strickland,
566 U.S. 1 (2009) "in order for a minority group to satisfy the first Gingles precondition and be ‘sufficiently large
and geographically compact to constitute a majority in a single member district’ [internal cites omitted] it must
constitute a numerical majority of citizens of voting age." Reyes v. City of Farmers Branch, Texas, 586 F.3d 1019
(5th Cir. 2009) (approving the CVAP standard for determining majority minority districts.

15

 Gingles threshold requirement and thus failed to state a claim upon which relief
may be granted.
IV.

Reducing the number of districts from nine and eight to four cannot
be the basis for a cause of action.
Plaintiffs, at the most recent hearing, alluded to an issue which is not

obvious from a plain reading of their complaint, that is, that reducing the total
number of offices from nine and eight can constitute vote dilution under §2 of the
Voting Rights Act or the 14th and 15th amendments of the Constitution. Justice
Kennedy's opinion for the court in Holder v. Hall, 512 U.S. 874 (1994) would
appear to foreclose such claim under the facts as pled of this case. The Holder
case was a challenge to the single commissioner form of County government in the
state of Georgia. Counties were not required use the single commissioner form of
government, but it was allowed as one of the alternatives. Plaintiffs asserted that
under a five district commissioner plan Plaintiffs could elect one of the
commissioners in a majority minority district. Justice Kennedy quoting Justice
O'Connor from her opinion in Gingles noted that in a vote dilution case there is a
distinct problem because the phrase itself "’suggests a norm with respect to which
the fact of dilution may be ascertained….[I]n order to decide whether an electoral
system has made it harder for minority voters to elect the candidates they prefer, a
court must have an idea in mind of how hard it should be for minority voters to
elect their preferred candidates under an acceptable system.’" Holder at 880-881,
16

 quoting Gingles at 88. Justice Kennedy then states, "the search for a benchmark is
quite problematic when a §2 dilution challenge is being brought to the size of a
government body. There is no principled reason why one size should be picked
over another as the benchmark for comparison." Holder at 881.
Justice Kennedy also made it very clear that the fact that a change in size of
governmental bodies was a matter that would be subject to section 5 preclearance
was of no aid to the Plaintiffs in this matter. "[u]nlike in section 5 cases, therefore,
a benchmark does not exist by definition in §2 dilution cases. As explained above,
with some voting practices, there in fact may be no appropriate benchmark to
determine if an existing voting practice is diluted under § 2. For that reason, a
voting practice that is subject to the preclearance requirements of section 5 is not
necessarily subject to a dilution challenge under § 2." Holder at 884. Justice
Kennedy closed by stating, "with respect to challenges to the size of a governing
authority, respondents fail to explain where the search for reasonable alternative
benchmarks should begin and end, and they provide no acceptable principles for
deciding future cases. The wide range of possibilities makes the choice ‘inherently
standardless’[internal citation omitted] and we therefore conclude that a plaintiff
cannot maintain a §2 challenge to the size of a government body…" Holder at 885.
The concerns regarding the “standardless” nature of challenging the size of a body
are equally applicable if brought on a constitutional claim and would appear
17

 equally applicable. In short any claim challenging the decision to draw four
justices of peace and constable districts, particularly where the percentage of
majority minority districts is maintained, must be dismissed as a matter of law.
V.

Influence claims are not cognizable.
Plaintiffs’ Counts One and Two both make claims that Plaintiffs’ harm is a

denial of "an equal opportunity to participate effectively in the political process
and to have any meaningful or significant influence in elections for the offices of
Justice of the peace… [and] Constable in Galveston County." Original Complaint
at ¶¶ 58-62. While it is not clear at all from the complaint how Plaintiffs believe
that they are denied influence by the new justice of peace and constable districts it
is quite clear that after Bartlett v. Strickland, 566 U.S. 1 (2009) and LULAC v.
Perry, 548 U.S. 399 (2006), influence claims are not cognizable as a matter of law
under §2 of the Voting Rights Act. Justice Kennedy was quite forceful in his
opinion in Bartlett that the types of claims suggested by the Plaintiffs in count one
and two are not legally cognizable under the facts alleged in this complaint. In
Bartlett Justice Kennedy (citing to his own opinion in LULAC) stated:
"if section 2 were interpreted to require crossover
districts throughout the nation,’ it would unnecessarily
infuse race into virtually every redistricting, raising
serious constitutional questions.’[Internal citations
omitted] Bartlett at 21. [Justice Kennedy continued]
"[under] petitioner's view of the case courts and
legislatures would need to scrutinize every factor that
18

 enters into districting to gauge its effect on crossover
voting injecting this racial measure into the nationwide
districting process would be of particular concern with
respect to consideration of party at registration or party
influence. The easiest and most likely alliance for a
group of minority voters is one with a political party, and
some have suggested using minority voters’ strength
within a particular party as a proper yardstick under the
first Gingles requirement….That approach would replace
an objective, administrable rule with a difficult ‘judicial
inquiry into party rules and local politics’… more
troubling still is the inquiry's fusion of race and party
affiliation as a determinant when partisan considerations
themselves may be some suspect in the drawing of
district lines….And thus with the relationship between
race and party further distort and frustrate the search for
neutral factors and principled rationales for districting."
Bartlett at 22-23 [internal citations omitted].
While the decision in Bartlett has eliminated influence claims under §2 of
the Voting Rights Act because they cannot meet the first prong of the Gingles test,
Voinovich v. Quilter, 507 U.S. 146 (1993), which was decided before Bartlett,
clearly illustrates that any influence claim under the facts pled in this case would
also fail to meet the second and third Gingles prongs as a matter of law. The
Democrat Plaintiffs claimed that "the plan [drawn by Republicans] packed black
voters by creating districts in which they would constitute a disproportionately
large majority," thereby violating §2 of the Voting Rights Act and the 15th
amendment. In the Democrats’ view, "the plan should have created a larger
number of influence districts -- districts in which black voters would not constitute
19

 a majority but in which they could, with the help of a predictable number of
crossover votes from white voters, elect their candidates of choice [i.e. NHW
Democrats]."10 The District Court found for the NHW Democrat plaintiffs;
however the Supreme Court in a unanimous opinion reversed.
In Voinovich, the Court refused to decide "whether influence dilution claims
such as appellees’ are viable under § 2"11 (that would occur later in Bartlett). The
court noted that this case did not involve the usual vote dilution claims of
"fragmentation of a minority group" (cracking) or that "Ohio's creation of majority
black districts prevented black voters from constituting a majority in additional
districts." (packing)12 However, the Court did say that while the “first Gingles
precondition, the requirement that the group be sufficiently large to constitute a
majority in a single member district, would have to be modified,” the other two
preconditions would definitely apply if an influence claim were actionable.13 The
Court then noted that it was necessary for the plaintiffs’ argument to assert
“coalitional voting between whites and blacks” and that black interests could be
adequately represented from “districts with only a 35% black population.”14 The
Court used these factual concessions to find that plaintiffs failed to prove the

10 Id at 149-150.
11 Id at 154.
12 Id at 153.
13 Id at 158.
14 Id at 151-152. The choice of 35 percent is significant because it is in the range of the quota of black vote
typically needed to draw a safe white Democrat district.

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 polarized voting requirements of the Gingles preconditions.15 The Voinovich
holding creates a “Catch-22” for Plaintiffs attempting to allege an influence claim;
the mere fact that polarized voting is supposedly low enough to allow for effective
influence means that the polarized voting is not sufficiently great so as to create a
legally cognizable harm particularly under §2 of the Voting Rights Act.
While the decision in Bartlett specifically reserved the question of whether
intentional discrimination could allow for influence districts it is hard to imagine
how the concerns raised by Justice Kennedy in the quotation above are any less
applicable in the constitutional context than they are in the statutory. Furthermore
it would appear that even under a constitutional claim the logic of the Voinovich
case would foreclose there being a sufficient discriminatory effect that would allow
the claim to proceed even if there were proof of invidious discriminatory intent.
Therefore under the facts pled in this case any claim citing to a loss of influence as
a harm, particularly when proportional representation has been provided, should be
dismissed as a matter of law.
VI.

Racial Gerrymandering claim is inconsistent with the facts pled by
Plaintiffs.

Finally there is the question of count three. Count three is what is
commonly referred to as a Shaw v. Reno, 509 U.S. 630 (1993), claim which seems
completely inconsistent with the first two claims in plaintiff's complaint. It is not
15 Id at 158.

21

 asserted in the alternative, nor is it explained elsewhere in the compliant. Plaintiffs
asserting racial gerrymandering claims are normally attempting to eliminate as
unconstitutional majority minority districts which have been drawn in conformance
with the demands of the Department of Justice in preclearance actions. The claim
has as its basis that a defendant has allowed consideration of race to "predominate"
over neutral state criteria.
Courts and legislatures were in a difficult position after Shaw; they still had
to contend with the continuing validity as stated by the Shaw Court of §§2 and 5 of
the Voting Rights Act, and racial vote dilution under the Fourteenth Amendment
but not to the level where race "predominated". A majority of the Justices for
vastly different and mutually incompatible reasons viewed the Shaw line of cases,
the Voting Rights Act and racial vote dilution under the Fourteenth Amendment to
be antithetical and irreconcilable.16 Justice O'Connor, the deciding vote in all of
the Shaw cases, had disagreed beginning with Shaw I.17 She asserted that these are
not antithetical concepts and in her opinion and concurrence in Bush v. Vera, 517
U.S. 952 (1996), she created a more workable unifying hierarchy which she
16 Bush v. Vera, 517 U.S. 952 (1996) Justice Kennedy concurring; Justice Thomas, joined by Justice Scalia,
concurring in the judgment; Justice Stevens, joined by joined by Justices Ginsberg and Breyer, dissenting; Justice
Souter, joined by Justices Ginsberg and Breyer, dissenting. See also supra n. 118.
17 “This Court never has held that race-conscious state decision-making is impermissible in all circumstances.
Shaw I at 642. “ [C]ompliance with the results test of §2 of the Voting Rights Act (VRA) is a compelling state
interest. Second; that test can coexist in principle and practice with Shaw [cite omitted] and its progeny.” 517 U.S.
990 (O’Connor concurring). “Although I agree with the dissenters about § 2’s role as part of our national
commitment to racial equality, I differ from them in my belief that that commitment can and must be reconciled with
the complementary commitment of our Fourteenth Amendment jurisprudence to eliminate the unjustified use of
racial stereotypes.” 517 U.S. at 993. See also 515 U.S. at 928, supra at n. 123.

22

 referred to as a “framework” similar to that used in the deviation cases.18 This
framework for analyzing Shaw cases is still the definitive statement of the Supreme
Court.
Justice O' Connor would allow race to be considered and majority-minority
districts to be intentionally drawn so long as these districts did not violate the
state's redistricting criteria without invoking strict scrutiny. Bush v. Vera, 517 U.S.
952 (1996). Justice O'Connor makes this point throughout her opinion by
emphasizing "for strict scrutiny to apply, the Plaintiffs must prove that other,
legitimate districting principles were ‘subordinated’ to race.” Id. at 959. She goes
on to elevate the violation of the states’ traditional districting criteria to a threshold
issue. In part II of the decision, Justice O'Connor states "the neglect of traditional
districting criteria is merely necessary, not sufficient. For strict scrutiny to apply,
traditional districting criteria must be subordinated to race. [Cite omitted] Nor, as
we have emphasized, is the decision to create a majority minority district
objectionable in and of itself." Id. at 962. Likewise, Justice O'Connor notes that
states "may avoid strict scrutiny altogether by respecting their own traditional
districting principles…and nothing we say today should be read as ‘limiting a
18 Justice O'Connor, describing her reasons for writing a separate concurrence after having delivered the opinion of
the Court in Bush, explained that she believed "States and lower courts are entitled to more definite guidance as they
toil with the twin demands of the Fourteenth Amendment and the VRA...In addition, fundamental concerns of
federalism mandate that states be given some leeway so that they are not 'trapped between the competing hazards of
liability’." 517 U.S. at 990-992, Quoting Wygrant v. Bd. of Ed., 476 U.S. 267, 291 (1986) (O'Connor concurring).
“Today’s decisions, in conjunction with the recognition of the compelling state interest in compliance with the
reasonably perceived requirements of §2, present a workable framework for the achievement of these twin goals.”
Id at 993.

23

 state’s discretion to apply traditional districting principles,’[cite omitted] in
majority-minority, as in other districts." Id at 978 (emphasis added). She repeats
this point in her concurrence when she says "states may intentionally create
majority minority districts, and may otherwise take race into consideration without
coming under strict scrutiny… so long as they do not subordinate traditional
districting criteria to the use of race for its own sake or as a proxy." Id. at 993.
Violations of the state's criteria could be justified if it can be shown that the state
has "a strong basis in evidence" that the Gingles factors are present.19
Under O'Connor's framework, in order for Plaintiffs to state a claim for
racial gerrymandering, they have to allege that the traditional redistricting criteria
for justices of the peace and constable districts were not followed by Galveston
County in the construction of the current districting plan. Plaintiffs’ complaint
alleges no map, nor data which might substantiate this claim. In fact the only map
which plaintiff puts forward is the current eight district map which contains a
grossly racially gerrymandered district in old precinct 2, which constitutes less
than 3% of the county's total caseload and a miniscule portion of the county's
population and only appears to exist in order to create a position for a minority
justice of the peace and constable. The only way that Plaintiffs can justify such a
district in their map is by asserting that it is required in order to avoid vote dilution
19 Id at 994. Justice O’Connor would find that a violation of §2 of the Voting Rights Act (and presumably the
Fourteenth Amendment) would constitute “a compelling state interest” sufficient to meet strict scrutiny which could
be remedied by a race-based method if narrowly tailored. Id. at 990.

24

 under §2 or the 14th amendment. As is well illustrated by Justice O'Connor's
framework, such a position by Plaintiffs destroys their assertion that race
predominated in the current justice of peace and constable districts and would
allow the county to draw majority minority districts which violated the traditional
redistricting criteria such as those alluded to by the North Carolina supreme court
in Pender County v. Bartlett, 361 N.C. 491, 510 (N.C. Sup. Ct. 2007) aff’d sub
nom, Bartlett v. Strickland, 566 U.S. 1 (2009). Furthermore, if Plaintiffs are
actually successful on this count, the County could actually eliminate all of the
majority minority justice and peace and constable precincts. This would appear to
be contrary to what Plaintiffs are seeking in this litigation since, with one
exception, they are in fact the current officeholders.
CONCLUSION
WHEREFORE Defendants pray the Court enter judgment that Plaintiffs’
allegations against Defendants be dismissed because the complaint fails to state a
claim against defendant upon which relief can be granted, or in the alternative, that
Plaintiff be required to replead to provide a factual basis for each of their claims.
Respectfully submitted,
GALVESTON COUNTY LEGAL
DEPARTMENT
/s/ Robert Boemer
Robert B. Boemer – Attorney In Charge
25

 State Bar No.: 02550550
Barry C. Wiley
State Bar No.: 00788670
722 Moody, 5th Floor
Galveston, Texas 77550
Telephone: (409) 770-5562
Facsimile: (409) 770-5560
BEIRNE, MAYNARD & PARSONS, L.L.P.
James E. “Trey” Trainor, III
State Bar No.: 24042052
Dalton L. Oldhan (pro hoc vica filed)
401 W. 15th Street, Suite 845
Austin, Texas 78701
Telephone: (512) 623-6700
Facsimile: (512) 623-6701
Joseph M. Nixon
State Bar No.: 15244800
1300 Post Oak Blvd., Suite 2500
Houston, Texas 77056
Telephone: (713) 871-6809
Facsimile: (713) 960-1527
ATTORNEYS FOR DEFENDANTS

26

 CERTIFICATE

OF

SERVICE

I hereby certify that on October 29, 2013 that I electronically filed the
foregoing document with the Clerk of the United States District Court for the
Southern District of Texas, Galveston Division, using the electronic case filing
system of the Court. The electronic case filing systems sent a “Notice of
Electronic Filing” to the following attorneys of record who have consented in
writing to accept this Notice as service of this document by electronic means:
Chad W. Dunn
K. Scott Brazil
BRAZIL & DUNN
4201 FM 1960 West, Suite 530
Houston, Texas 77068
Neil G. Baron
LAW OFFICE OF NEIL G. BARON
914 FM 517 West, Suite 242
Dickinson, Texas 77539
ATTORNEYS FOR PLAINTIFFS

/s/ Robert Boemer
Robert B. Boemer

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