Session v. Perry

¶1concurring in part and dissenting in part.

¶2I.

¶3I join the court’s opinion that the law does not preclude the State’s Legislature from enacting a mid-decade redistricting plan following a court-ordered remedial plan such as the one enacted by the court in Balderas v. State of Texas. I understand the court’s opinion to be limited to that question. I write separately to em*516phasize that it is one question to ask whether the law prohibits a state from enacting a mid-decade redistricting plan. It is quite another to ask whether a state may dictate electoral outcomes by using its Article I authority to thwart the Supreme Court’s mandate that votes cast in a Congressional election be given as nearly equal weight as possible.

¶4I do not read the Court’s decisions in U.S. Term Limits v. Thornton, 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995) and Cook v. Gralike, 531 U.S. 510, 121 S.Ct. 1029, 149 L.Ed.2d 44 (2001) quite as narrowly as my colleagues. Admittedly, those cases rejected state laws which sought to add to the Qualifications Clause either directly as in Term Limits, or indirectly, through pejorative ballot descriptions as in Cook. From that standpoint they are easier cases than this one to decide. Nonetheless, these decisions underscored that “the Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints.” Term Limits, 514 U.S. at 833-34, 115 S.Ct. 1842; Cook, 531 U.S. at 523, 121 S.Ct. 1029.

¶5Although the state’s authority to issue procedural regulations is broad, at some point a state exceeds the power granted to it by the Elections Clause. Modern technology effectively allows a state to dictate electoral outcomes and to favor or disfavor a class of candidates by enabling extreme partisan gerrymandering. I join the court’s decision that the Elections Clause does not prohibit mid-decade redistricting and note that there may be legitimate state interests advanced by the effort. Whether the present exercise is a “legitimate” state interest may ultimately be resolved by the Supreme Court in Vieth v. Jubelirer, and it seems to me that the Elections Clause would be equally offended by a state’s abuse of its authority regardless of whether such abuse occurred in the beginning, the middle, or the end, of a decade following the release of the census data. It is not the timing of the endeavor that creates problems, it is the fact of it.

¶6As noted by the court in Balderas, partisan gerrymandering reflects a “fundamental distrust of voters.” As in other contexts, extreme partisan gerrymandering leads to a system in which the representatives choose their constituents, rather than vice-versa. I join the court’s judgment on the partisan gerrymandering issue given the high bar set in the equal protection context, but I do not join the court’s discussion of the issue under Section III.B. That discussion implies that extreme partisan gerrymandering is okay as long as one party can reverse the tide when it takes over the statewide offices. Dr. Alford’s report and testimony provides a detailed analysis of the effects of the extreme partisan gerrymander enacted in this case and the dangers of ignoring these issues. As Dr. Alford explains, these dangers include the encouragement of race-based redistricting. At present, we lack the legal precedent to sustain this challenge under either the Equal Protection Clause or the Elections Clause. The present case fails under the standards announced in Davis v. Bandemer and its progeny-even though those standards may or may not ultimately control the disposition of this case, given its timing and that of the arguments in Vieth v. Jubelirer.

¶7I join much of the balance of the opinion. I agree that the plaintiffs have not prevailed on their equal protection claims and I agree that no violation of the Voting Rights Act has been shown with respect to Districts 18 and 30. On the remaining § 2 *517issues, I dissent from the court’s opinion related to the issues surrounding District 23 and I concur in the court’s judgment insofar as it rejects the claims surrounding District 24 and the claims surrounding Districts 1, 2, 4, 9, 10, 11 & 17. I will first examine the claims related to District 23 and then visit the issue of the influence districts.

¶8II.

¶9A.

¶10The state action in this case unlawfully dilutes the strength of the Latino voters residing in former District 23. To that end, the majority errs when it holds that the State may permissibly “trade off’ the rights of minority voters in former District 23 for those in new District 25, a district created to assist the state with its pre-clearance efforts. I would enjoin the operation of Plan 1374C, permit the Legislature to remedy the violations, and, given the amount of the state that would likely be affected by the changes, order that the elections be conducted under Plan 1151C.

¶11B.

¶12For a statute whose purpose “is to prevent discrimination in the exercise of the electoral franchise and to foster our transformation to a society that is no longer fixated on race,” Georgia v. Ashcroft, — U.S. —, —, 123 S.Ct. 2498, 2517, 156 L.Ed.2d 428 (2003), the Voting Rights Act receives a curious interpretation in this case. The State’s heavy reliance on the flexibility given to it by Ashcroftmight carry the day with me if Plan 1374C bore any resemblance to the redistricting plan at issue there. It does not.

¶13To begin, the state senate plan at issue in Ashcroftwas overwhelmingly supported by the minority legislators. Just the opposite is true in this case. Georgia’s plan sought to maximize the statewide influence of black voters in the State of Georgia. The plan unpacked districts in which blacks constituted a super-majority and (1) maintained the number of majority-minority districts and, at the same time, (2) increased the number of “influence districts” in which blacks would be expected to exert a significant-if not decisive-force in the electoral process. Georgia did so by placing black voters into districts that were likely to lean Democratic in the election returns. Because black voters in Georgia usually supported Democratic candidates, the creation of these influence districts made it likely that blacks could exert more influence in the election process and, correspondingly, increased the likelihood that the elected candidate would be responsive to the black communities’ needs. The distinct but related concepts of substantive versus descriptive representation were at issue.

¶14Georgia argued that, although the plan made the super-majority districts somewhat less “safe,” its plan as a whole increased the political clout of blacks statewide and therefore did not result in a retrogression in African-American voters’ effective exercise of the electoral franchise. Ashcroftheld that “[i]n order to maximize the electoral success of a minority group, a State may choose to create a certain number of ‘safe’ districts, in which it is highly likely that minority voters will be able to elect the candidate of their choice. Alternatively, a State may choose to create a greater number of districts in which it is likely-although perhaps not quite as likely as under the benchmark plan-that minority voters will be able to elect candidates of their choice.” Ashcroft, — U.S. at —, 123 S.Ct. at 2511. The Court explained that the extent to which a plan created coalition and influence districts were important considerations in the preclearance inquiry. Ultimately, the Court held that *518the three-judge court, by circumscribing its focus on the unpacked districts, had engaged in too narrow a review of whether the redistricting plan would lead to retrogression at the statewide level. The majority reads Ashcroftto give the state flexibility to comply with its obligations under the Voting Rights Act. This is true, to a point. Ashcroftwas a § 5 case and its language certainly permits the states a certain amount of latitude in determining how to maximize minority voter influence. But I do not read Ashcroft-a decision designed to foster minority participation in the political process-to permit the state to dismantle an existing opportunity district for political purposes so long as the loss is made up somewhere else. Nor do I read Ashcroftto make it harder to prove claims under § 2. There was no § 2 question decided in Ashcroft. Indeed, one of the grounds Georgia asserted in support of pre-clearance was the plan’s compliance with § 2 of the Voting Rights Act. It is hard for me to believe that the Supreme Court intended to make it harder to prove a § 2 claim by endorsing a statewide approach that the Court believed could have the effect of maximizing minority influence.

¶15Ashcroftrecognizes the value of safe districts, coalition districts, and influence districts as means to increase minority voting opportunities and political influence. Make no mistake about it: Despite the State’s protestations to the contrary, the changes to District 23 under Plan 1374C were not intended to increase minority voter participation either by strengthening the district or “unpacking” the minority voters into adjoining districts to maximize the overall political strength of Hispanics. These changes were designed to crush these minority voters’ participation in the political process.

¶16C.

¶17Under Plan 1000C, in effect after the 1990 census, as well as under its successor, Plan 1151C, District 23 was a protected Latino opportunity district. The district had a Latino citizen voting age population in excess of 50% and was designed to offer Latino voters the opportunity to elect candidates of choice. Under Plan 1000C, the district boasted a Spanish Surname Voter Registration of 53.3%. And under Plan 1151C, that figure was increased to 55.3%. The Balderas court implicitly recognized that District 23 under Plan 1151C was a protected minority opportunity district when it maintained only six Latino majority citizen voting age districts. A review of the statistical package for Plan 1000C reveals that District 23 was one of those six districts. All six (and only those six) had a Spanish Surname Voter Registration in excess of 50%.

¶18As it was configured under Plan 1151C, District 23 offered Latino voters the opportunity to elect their candidate of choice. In the present case, Dr. Gaddie, the State’s expert, testified that District 23 under Plan 1151C performed for Latino voters in 2002 by electing the Latino candidate of choice in 13 out of 15 statewide elections. He also testified that a district which elects the Latino-preferred candidate of choice in such numbers offers Latinos the opportunity to elect their candidate of choice. Dr. Engstrom, the GI Forum plaintiffs’ expert, reached a similar conclusion: He analyzed racially contested statewide elections from 1994 to 2002 and concluded that District 23 under Plan 1151C elected the preferred Latino candidate in 5 out of 8 races and offers Latino voters the opportunity to elect candidates of choice. Dr. Lichtman, called by the Jackson plaintiffs, arrived at the same conclusion.

¶19*519When it enacted Plan 1374C, the State altered the racial composition of District 23 not to increase the likelihood that the Latino community therein would elect a candidate of its choice, but to ensure it would have no practical influence on the congressional election. All of the experts agree that Plan 1374C alters District 23 to the point where it has no hope of functioning as an effective Latino opportunity district. There is no dispute that the State altered District 23 to help re-elect Congressman Henry Bonilla because it predicted that if Latinos continued to constitute a majority of the citizen voting age population in District 23, Congressman Bonilla would ultimately lose. The evidence is that he is not the Latino candidate of choice. The 2002 congressional election foreshadowed the need for this change: Congressman Bonilla received only 8% of the Hispanic vote. Spanish surname voter registration has correspondingly risen during the same time period and, until the Legislature passed Plan 1374C, had grown to approximately 55% for the district.

¶20The State’s solution to this political problem was brutal, yet simple: destroy the opportunity district. The state did so by cracking a cohesive Hispanic community out of Webb County and taking in Anglos from the Texas Hill Country to build a district in which the Hispanic community will not be able to influence the outcome of the election. The majority’s characterization of new District 23 as a Latino “influence district” is therefore in error. An influence district is a district in which the minority population carries enough political weight potentially to be the swing vote in the election and command the attention of the representative. A competitive district is the touchstone. Not so with new District 23. The Hispanic citizenship figures have been reduced by so great a margin that the Hispanics in District 23, although having the ability to control the Democratic primary, will lose the general election every time. The undisputed regression analyses confirm this. Contrary to the majority’s characterization, the district’s very design ensures a lack of competitiveness and a corresponding lack of responsiveness.

¶21There are, however, a total of 359,000 Latinos who continue to reside in new District 23. They object to the State’s dismantling of their opportunity district under § 2. The question presented is whether a state can, consistent with § 2, intentionally dilute a minority group’s voting rights in an existing opportunity district to obtain a partisan advantage while, at the same time, offset the effects by creating a new district in another part of the state. The majority’s answer is that Ashcroftand Johnson v. De Grandy, 512 U.S. 997, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994), permit this sort of line-drawing. I disagree.

¶22D.

¶23Contrary to the majority, I do not read Ashcroftor De Grandyto encourage the sort of voting rights swap meet put into play by Plan 1374C. The majority effectively reads Ashcroft’s § 5 holding and De Grandyto countenance violations of § 2 in one part of the state, so long as those violations are “offset” by the creation of new minority opportunity districts elsewhere in the state. The State conceded that this was its position in response to questions from the bench during closing arguments. By its terms, of course, Ashcroftsays nothing about a state plan which unlawfully dilutes the minority strength in one part of the state and seeks to “offset” that dilution by the creation of a new minority opportunity district in a different part of the state-one of Georgia’s conten*520tions was the plan’s compliance with § 2 required pre-clearance under § 5.

¶24That Ashcroftdid not endorse the approach suggested by the State is not surprising. The Court had already answered this question once in De Grandyand again in its Shaw cases. In De Grandy, the state proposed a per se rule that proportionality was a safe harbor, insulating any reapportionment plan which provided proportional representation from a Section 2 challenge. In rejecting that proposal, the Court stated that the state’s argument rested on an “unexplored premise of highly suspect validity: that in a given case, the rights of some minority voters under § 2 may be traded off against the rights of other members of the same minority class.” 512 U.S. at 1019, 114 S.Ct. 2647. Later, in Shaw v. Hunt, 517 U.S. 899, 917, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996)(Shaw II), the Court made its views even more explicit:

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.” 42 U.S.C. § 1973(b). The vote-dilution injuries suffered by these persons are not remedied by creating a safe majority-black district somewhere else in the State. For example, if a geographically compact, cohesive minority population lives in south-central to southeastern North Carolina, as the Justice Department’s objection letter suggested, District 12 that spans the Piedmont Crescent would not address that § 2 violation. The black voters of the south-central to southeastern region would still be suffering precisely the same injury that they suffered before District 12 was drawn. District 12 would not address the professed interest of relieving the vote dilution, much less be narrowly tailored to accomplish the goal.

Arguing, as appellees do and the District Court did, that the State may draw the district anywhere derives from a misconception of the vote-dilution claim. To accept that the district may be placed anywhere implies that the claim, and hence the coordinate right to an undiluted vote (to cast a ballot equal among voters), belongs to the minority as a group and not to its individual members. It does not.

¶25Although I recognize that “States retain broad discretion in drawing districts to comply with the mandate of § 2,” Shaw II, 517 U.S. at 917 n. 9, 116 S.Ct. 1894 (citing Voinovich v. Quilter, 507 U.S. 146, 156-57, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993); and Growe v. Emison, 507 U.S. 25, 32-37, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993)), I do not read the Court’s cases to mean that the “effects” test of § 2, if satisfied, may be defended against by pointing to a political agenda in the affected portion of the jurisdiction and compensation, over the long haul, to other members of the injured group residing elsewhere in the jurisdiction. De Grandyrejected the state’s proposed safe harbor rule precisely because it encouraged what happened in this case. The court said: “... we reject the safe harbor rule because of a tendency the State would itself certainly condemn, a tendency to promote and perpetuate efforts to devise majority minority districts even in circumstances where they may not be necessary to achieve equal political and electoral opportunity.” De Grandy, 512 U.S. at 1019-20, 114 S.Ct. 2647 (emphasis added). New District 25 falls squarely within the scope of this statement.

¶26In this case, the State’s redistricting effort mirrors precisely what De Grandycautioned against. The fundamental flaw *521in the majority’s approach is that it fails to appreciate that the Latino districts created in Plan 1374C are not in “the same area” as the Gingles districts have been located historically. In the past, the Latino groups have enjoyed participation in the six Gingles districts located in Plan 1000C and in Plan 1151C. Although there are still six Latino opportunity districts in Plan 1374C, those new districts take in quite different geography and population. The State took in, geographically, 10 additional counties and portions of 4 others which span an area of at least 8,500 square miles. The State also took in more than 651,000 additional persons. To accomplish its goals, the state was forced to create new District 25 which reaches from the border in excess of three hundred miles north to include Hispanic population in Travis County.

¶27In its effort to validate Plan 1374C,' the majority first tells us that District 25 was created “[t]o avoid retrogression under Section 5.” Quite correctly, the majority recognizes that the changes to District . 23 resulted in the dilution of the Latino vote therein. But then, when confronted with the language of Shaw and De Grandywhich prohibits exactly this sort of tradeoff, the . majority explains that the state enjoys the flexibility under De Grandyto draw Gingles districts in a different way, so long as it creates a total of six (but only six) districts in which Latinos may elect a candidate of choice. But Gingles addresses liability under § 2. No one suggests the State needed to create new District 25 to guard against a potential vote dilution challenge by a resourceful if not aspiring coalition of Latinos living in Travis County and those living in the colonias over 300 miles away near the Texas-Mexico border. At yet • another place in its opinion, the majority implicitly repudiates this very species of § 2 liability when it holds to be non-compact the GI Forum’s demonstration districts — even though all have better compactness scores than new District 15 in Plan 1374C.

¶28The majority blurs the distinction between the State’s flexibility to comply with its procedural obligations under § 5 and its flexibility to comply with its remedial obligations under § 2. The majority misses this distinction because it fails to appreciate the fact that the Latino opportunity districts in Plan 1374C take in different populations and geography than before.1 The majority’s initial reaction to new District 25 was of course correct: the State created new District 25 to “offset” the loss of old District 23 for § 5 preclearance purposes. But the underlying forces driving the need for new District 25 are inconsistent with Ashcroft’s rationale. At issue in Ashcroftwas Georgia’s decision to unpack black opportunity districts to increase the statewide political might of the minority voters. Central to Ashcroft’s willingness to provide states with flexibility was the Court’s recognition that the plan was intended (or at least contended to be intended) to increase minority voting strength statewide. Unlike the efforts in Ashcroft, the dilution of Latino voting strength in District 23 was not designed to maximize Latino voting strength statewide, and, as noted, the majority’s characterization of District 23 as continuing on as some sort of an Hispanic influence district is error. Under the majority’s theory of influence districts, we are left to conclude that Congressman Bonilla will be more *522responsive to the Latino community now that they constitute over 10% less of his constituency.

¶29This turns Ashcrofton its head. District 23 is designed so that the Hispanic population therein will not influence the outcome of the elections and mil not tend to make the elected representative more responsive to the community’s needs. The only thing the Hispanic community in District 23 will influence is the total population of the district to meet “one person, one vote” requirements. The state action was designed to increase Henry Bonilla’s chance of electoral success at the expense of District 23’s dissatisfied Hispanic voters. To suggest that those minority voters cannot prevail on a dilution claim under § 2 elevates the State’s political agenda over the individual rights of Latino voters in former District 23. For these reasons, I would reject the State’s efforts to trade the rights of Latinos in old District 23 for those in new District 25.

¶30E.

¶31As stated, it is my opinion that the State violated § 2 when it dismantled old District 23 and replaced it with new District 25. If the majority is correct that the State could draw new District 25 to comply with its Gingles obligations, then the majority is confronted at once with the GI Forum plaintiffs’ dilution claim. These plaintiffs claim that Plan 1374C dilutes the statewide strength of Hispanic voters because it fails to create a seventh Latino majority district. The majority, however, rejects the GI Forum plaintiffs’ claims for several reasons. First, the majority opines that the proposed districts will not be effective. Second, the majority holds that the districts are not compact. Third, the majority determines that De Grandyproportionality tends to show that Plan 1374C will not have the effect of unlawfully diluting the Latino vote. Finally, the majority suggests that Balderas rejected the identical claim. None of these reasons is persuasive.

¶321.

¶33In this case, if the State is permitted or required to draw Gingles remedial districts into the new areas of the state and in the manner in which it did, the GI Forum plaintiffs assert that the Gingles preconditions suggest that seven majority Latino districts should be created. I agree. The evidence is undisputed that, under Plan 1385C, sponsored by the GI Forum plaintiffs, Latino voters constitute the majority of citizen voting age population in seven congressional districts in South and Central Texas. See Valdespino v. Alamo Heights Independent School Dist., 168 F.3d 848 (5th Cir.1999)(interpreting Gingles to require consideration of citizen voting age population or “CVAP”); Campos v. City of Houston, 113 F.3d 544, 548 (5th Cir.1997)(same). These districts are District 15 (63.3% CVAP), District 16 (68.0% CVAP), District 20 (58.0% CVAP), District 23 (57.2% CVAP), District 25 (58.4% CVAP), District 27 (59.9% CVAP), and District 28 (50.3% CVAP).

¶34The majority resists the GI Forum plaintiffs’ demonstration plan because it believes the plan does not provide seven “effective” Latino districts. I disagree. The majority places great emphasis on the fact that the Hispanic CVAP of District 28 in Plan 1385C is only 50.3%. Be that as it may, under the evidence submitted by the GI Forum plaintiffs, the district elected the Latino candidate in 8 out of 8 elections since 1994, and the vote for the Latino candidate in the most recent elections, 2002, exceeded 55% of the total vote in each of the four elections. See, e.g. GI Forum plaintiffs’ Exh. 131; (Tr. 12/16/03 a.m. at 29-30). On balance, District 28 is almost identical in performance to District *52328 in the State’s plan 1374C despite the fact that, in District 1374C, District 28 has an Hispanic CVAP of 56.2%. By contrast, the weakest district in the GI Forum plaintiffs’ demonstration map is District 23, which elected the Latino candidate of choice in 5 out of 8 elections at margins nearly identical to those .which led the Balderas court to conclude that District 23 was a protected minority opportunity district. Each of the remaining Latino districts in Plan 1385C elects the Latino candidates to office in 8 out of 8 elections. Viewed in the light of these election returns as opposed to simply looking at the CVAP content or any other single statistic, all of these districts perform, in terms of winning elections, at least as. well as their counterparts in Plan 1374C.

¶35The majority also relies on the testimony of experts called by other parties, including Dr. Jerry Polinard, an expert witness called by the Valdez-Cox plaintiffs. The majority reads Dr. Polinard’s testimony to suggest that in all cases a higher Hispanic CVAP number is necessary to find an effective Hispanic opportunity district. The majority is wrong. In the first place, as set forth above, Dr. Engstrom’s analysis of the election results tell a different story. Moreover, Dr. Polinard was in fact testifying about the effects of the districts as drawn in Plan 1374C, not Plan 1385C. What Dr. Polinard said with respect to numbers is:

I have no magic number. That’s going to vary-vary by District. I will state the obvious, that if the Spanish surname voter registration percentage goes up, the opportunity goes up.

I think you become comfortable with opportunity districts once you break into those 60 percent ranges.

(Tr. 12/16/03 p.m. at 50-51).

¶36The majority also cites the testimony of the State’s expert with respect to new District 15 to reject as effective District 28 in the demonstration plan. In terms of actual election results, however, new District 15 appears to perform worse than the GI Forum plaintiffs’ proposed District 28, despite the fact that new District 15 has a higher Hispanic CVAP than proposed District 28.

¶37The truth of the matter is that the effectiveness of a minority opportunity district will vary by the district. A expert might find, for example, a need for a greater Hispanic CVAP in. a district ranging from Travis County to the border and covering three or four media markets than would be needed in a district that is somewhat more compact. Under the evidence, all of the districts in Plan 1385C have the numbers to make them effective Latino opportunity districts.

¶38This might be a closer call if the demographic evidence were otherwise. A showing that Latino population growth and voter registration was on the decline might counsel a court to conclude that gains over the short run might be offset by anticipated losses in the end. That is not our record. The evidence establishes that the Latino voter registration as well as overall population growth is rising. Over the course of the decade, the only conclusion to be drawn from this evidence is that Latino voting strength in these districts will become stronger, not weaker. The GI Forum plaintiffs have established that their proposed districts would be effective.

¶392.

¶40The majority also rejects the GI Forum plaintiffs’ contention that their districts are “compact.” But under the objective compactness scores, several of the GI Forum plaintiffs’ demonstration districts are, on balance, more compact than those in Plan 1374C. Although a few are worse, none of the districts scores worse than District 15 *524in Plan 1374C. Under the demonstration plan, 5 of the proposed districts have better “perimeter to area” scores than their counterparts in Plan 1374C. None of the districts in Plan 1385C have a perimeter to area score as high as District 15 in Plan 1374C. Under the smallest circle measure, three of the demonstration districts score better, one scores the same, and none is, again, as high as District 15 in Plan 1374C.

¶41The majority disregards these scores, saying the comparison “understates the unusual shapes of the proposed demonstration districts.” But it is the majority who overstates the significance of the “unusual” shapes of the districts. Focusing in on the “look” of the map as opposed to the objective scores and population centers, the majority says that District 25 virtually “bisects” District 23 in the demonstration plan. Viewed in the context of a redistricting plan, however, the two districts make perfect sense. District 23 strives to include the border communities of interest along the Rio Grande and, at the same time, retains over 99% of the City of Laredo-a major border population center-in District 23. The portions of District 25 which allegedly “bisect” District 23 are actually the boundaries of Dimmitt County, the total population of which is 10,248. The population of Laredo, 99% retained in District 23, is 176,576. The GI Forum plaintiffs’ demonstration plan is, on balance, more compact than the pertinent portions of Plan 1374C.

¶423.

¶43The majority’s principal answer to the GI Forum plaintiffs is that Plan 1374C provides Latinos the opportunity to elect congressional candidates in substantial proportion to their share of the relevant population as a whole under Johnson v. De Grandy. I disagree.

¶44a.

¶45In De Grandy, the Court noted:

If the three Gingles factors may not be isolated as sufficient, standing alone, to prove dilution in every multimember dis-tricting challenge, a fortiori they must not be when the challenge goes to a series of single-member districts, where dilution may be more difficult to grasp. Plaintiffs challenging single-member districts may claim, not total submergence, but partial submergence; not the chance for some electoral success in place of none, but the chance for more success in place of some. When the question thus comes down to the reasonableness of drawing a series of district lines in one combination of places rather than another, judgments about inequality may become closer calls.

512 U.S. at 1012-13, 114 S.Ct. 2647.

¶46Under De Grandy, proportionality is one factor to be considered in assessing the totality of circumstances to determine whether unlawful vote dilution has occurred under § 2. Id. at 1022, 114 S.Ct. 2647. “Proportionality” in this sense involves a comparison between (1) the percentage share of legislative districts in which the population of the protected class has a majority and (2) the protected class’s percentage of the relevant population. Proportionality is one factor to be considered, and it does not create a safe harbor precluding § 2 liability when present, nor does it impose per se § 2 liability when absent.

¶47b.

¶48Proportionality does not compel the rejection of the GI Forum plaintiffs’ claims in this case. Because of the procedural posture in De Grandy, the Court reserved the question whether proportionality should be measured on a statewide basis or by focusing on a smaller area of the jurisdiction at issue. De Grandy, 512 U.S. *525at 1022, 114 S.Ct. 2647 (“[w]e have no occasion to decide which frame of reference should have been used if the parties had not apparently agreed in the District Court on the appropriate geographical scope for analyzing the alleged § 2 violation and devising its remedy.”). Other courts have struggled with the question, but many have assessed proportionality by focusing on the nature of the specific Voting Rights Act claims at issue.2

¶49Under the facts of the present case, De Grandyproportionality should be measured by comparing the number of effective Latino congressional districts to the Latino percentage of the relevant statewide population. It is true that the GI Forum plaintiffs propose their Latino districts in the South and West Texas areas; however, it is equally the case that the GI Forum plaintiffs attack the operation of Plan 1374C because of its impact and its overall effect on the Latino voters in the state as a whole. They did not limit their challenge to the effect of Plan 1374C to the areas in South and Central Texas. An integral part of the claim is Plan 1374C’s failure to maintain districts in other parts of the state in which minority communities might play an influential if not outcome determinative role in the general elections to increase the likelihood that the elected candidate will respond favorably to the minority communities’ needs.

¶50The State apparently agreed with this approach until the evidence was in and it became apparent there was a problem under § 2 with 1374C. The State’s pretrial submissions addressed proportionality on a statewide basis. In particular, the State’s trial brief addressed De Grandyproportionality and represented, misleadingly, that proportionality was met under Plan 1374C, because Hispanics “would have a majority of the population in 25% of the districts.” Revised State Defendants’ Trial Brief, filed December 3, 2003, at 39 (emphasis added).3 It was not until after the close of the evidence that the State, or anyone else, contended that proportionality should not be assessed statewide.

¶51There is no risk that assessing proportionality on a statewide basis will lead to an over-representation of Latinos in Congress. For instance, there is no evidence tending to prove that Latinos elsewhere in the state (e.g., the panhandle, Dallas/Fort *526Worth, or East Texas) constitute a reasonably compact effective voting majority such that they could in the future assert a Section 2 violation in those parts of the state and require the creation of yet additional Gingles districts. Such evidence might require the court to assess proportionality on a smaller scale. Rural West, 209 F.3d at 844 (“The State complains that by allowing the plaintiffs to define the frame of reference for their § 2 claim, we will enable future litigants to carve up successively smaller areas of the State until they are able to maximize the number of majority-minority legislative districts-a result not countenanced by the Voting-Rights Act [but] as the district court pointed out, however, the Gingles preconditions operate to prevent just the sort of limit-lessly small ‘reverse gerrymander’ whose specter the State raises here.”). In this case, however, the claim is that Plan 1374C dilutes the statewide voting strength of Latinos. That is the proper geographic scope by which to measure De Grandyproportionality.

¶52c.

¶53So measured, Latinos constitute 32% of the total population and 29% of the voting age population in the State of Texas. De Grandyproportionality thus suggests that Latinos should comprise an effective voting majority, depending on whether one uses voting age or total population figures, in possibly nine or ten such districts. Under either measure, Plan 1374C fails to provide proportional representation to Latinos. Latinos enjoy the ability to elect representatives of their choice in only six districts: Districts 15, 16, 20, 25, 27 and 28. As a result, Plan 1374C fails to provide proportional representation.

¶54The majority concludes that proportionality should be assessed on the basis of the minority group’s percentage of the citizen voting age population. The majority overlooks that this question arises in the context of the apportionment of seats to the United States Congress. The seats are apportioned according to total population. From 1990-2000, the Latino growth in Texas accounted for more than 60% of the state’s total population. The state thus enjoys the benefit of the total Latino population through an increase in its Anglo congressional delegation, but at the same time seeks to restrict the Latino’s opportunity to elect to the fewest number of districts. Latinos are thus counted one way for apportionment purposes, but another when it comes to equal opportunity to participate in the political process. Stated another way, the state seeks the maximum use of the Latino population to gain power but seeks to minimize the sharing of power with the Latinos by using a more restrictive measure.

¶55d.

¶56Even assuming the correctness of the majority’s approach, however, 6 districts out of 7 remains at the low end of rough proportionality. For reasons that are apparent from this record, the majority errs when it rejects the § 2 claims by relying on rough proportionality. I would ascribe far less weight to the proportionality issue given the circumstances under which the present case comes to us. We must remember that the State is having to defend this claim because it made the conscious choice to dismantle a minority opportunity district to thwart the growing Latino dissatisfaction with an incumbent Congressman. Just when it became apparent that District 23 was becoming more effective for the class it was intended to protect, the State intentionally altered it. The State thus placed itself in this position and the related position of having to create a new Latino opportunity district to meet a retrogression concern. Although the majority concludes this action is permitted by De *527Grandy, that case rejected a safe harbor rule precisely because such a rule would encourage states to do what Texas did: create an “offsetting” district where none was necessary and substitute one group’s voting rights for another.

¶57The weight ascribed to proportionality by the majority allows the State to mask its efforts to thwart the policies underlying the Voting Rights Act. To illustrate, suppose that new District 15 in Plan 1374C fails to perform and does not elect a candidate of choice for Latinos. Suppose further that over the course of the next few years, the Latino community mobilizes and puts pressure on the incumbent. To use De Grandyto permit the State at that stage to dismantle District 15 and create a new district somewhere else has a tendency to perpetuate the legacy of discrimination, not to thwart it. Our record, and the State’s action directed toward old District 23, is no different.

¶584.

¶59Finally, the majority suggests that the Balderas court rejected this identical claim. The Balderas court did not. It is ironic that the State finds comfort in a remedial order that the Legislature rejected as controlling. Although I agree that the State has the authority to enact a redistricting plan, that new plan must stand or fall on its own merit, and not on any language of the Balderas remedial order-an order which must be read in context of Plan 1151C as a whole and which did not purport to address the merits of Plan 1374C. Balderas drew a remedial plan without the benefit of either the controlling citizen voting age population data or the most recent election returns. Those data are now available. Under those figures, seven districts may be drawn in which Latino voters will have the opportunity to elect their candidates of choice to Congress.

¶60Balderas was primarily motivated by the desire to meet the Supreme Court’s holding that a federal court should draw a remedial plan bearing in mind the requirements of the Voting Rights Act. The remedial order was thus forced to straddle the requirements of § 2 and § 5. At that time, prior to Ashcroft, a compelling argument could be made that a reduction in the overall Latino voting strength in any of the particular districts would have worked a retrogression prohibited by § 5. One of the forces driving the Balderas court’s rejection of a seventh Latino district in the Central and South Texas regions was that very concern. But the Attorney General has concluded, at least as to Plan 1374C, that an increase to the relevant geographic and population locations to accommodate six Latino districts, coupled with a corresponding reduction in the strength of District 15, will not lead to a retrogression of the minority group’s effective exercise of the electoral franchise. It is incumbent upon us, therefore, to assess whether, by embracing that increased geographic area and drawing new districts, the State has drawn its districts in a way that will dilute the strength of the Latino vote therein.

¶61The state is trying to have its cake and eat it too. The Balderas court found no vote dilution based on the totality of the circumstances then before it. The Balder-as court expressly noted that its remedial plan increased the Latino voting strength in District 24 and created a minority opportunity district in District 25 and, in doing so, hardly left “a bleak terrain” for minority voting opportunities. Similarly, under Plan 1151C, Latino voters enjoyed substantial influence over the outcome of the elections in, at a minimum, Districts 10, 11 and 17 which influence, in turn, increased the likelihood that the elected candidates from those districts would be responsive to the needs of the minority *528communities. The presence in 1151C of districts in which the candidates are responsive to the needs of the minority community is a relevant consideration under the Zimmer factors. Under the totality of the circumstances, the failure to create additional opportunities did not lead to a dilution in statewide Latino voting strength. Section 2 is concerned with effects, and the State is unable to point to the presence of these minority influence districts to counterbalance its failure to create a seventh Latino majority-minority district. The State cannot rely on the Balderas order to overcome this particular Section 2 challenge any more than the plaintiffs can rely on it to defeat the Legislature’s ability to redistrict mid-decade. Balderas therefore stands as no opposition to the GI Forum plaintiffs’ Section 2 claim.

¶62III.

¶63My opinion that the State violated § 2 when it dismantled old District 23 and replaced it with new District 25 renders it unnecessary to assess whether the “bacon strip” districts violate the principles set forth in Shaw v. Reno and its progeny.4 Restructuring of the South and Central Texas districts is necessary to remedy that § 2 violation. It is doubtful that the court could, consistent with Upham v. Seamon, simply remedy the areas adjoining District 23, without treading on the state’s policy as reflected overall in Plan 1374C. It is possible that any new configuration would cure any Shaw issues. For present purposes, it is enough for me to embrace the wisdom of Dr. Alford’s opinion that any Shaw issues present in South and Central Texas under Plan 1374C resulted from the state’s own action in altering District 23 for political purposes. The ripple effect of changes to this area of the map, however, would likely be felt across a large portion of the state. E.g., Abrams v. Johnson, 521 U.S. 74, 86, 117 S.Ct. 1925, 138 L.Ed.2d 285 (1997). Given the primary schedule, and the evidence in the record about the difficulties of conducting the elections even under the plan as enacted by the State, I would grant the Legislature the opportunity to cure these defects and order the elections to be held under Plan 1151C, a plan that is beyond dispute a legal one.

¶64IV.

¶65This is not an easy case. My colleagues’ concerns with interfering with legislative and political prerogatives are not without force, and I agree that politics motivated many of the decisions involved in the case. As difficult as the case is, however, I am unable to agree with the majority that § 2 was not violated when the state enacted Plan 1374C. I therefore dissent from that portion of the court’s opinion.

¶66V.

¶67As I stated at the outset, I reluctantly concur with the court’s judgment insofar as it addresses the claims related to the dismantling of District 24. It is not so much my agreement with the majority’s assessment of the facts that causes me to do so, but rather it is instead the lack of clear guidance from the Supreme Court or the circuits regarding the extent to which Ashcroft’s recognition of the value of coalitional and influence districts carries over into the § 2 context. At the present time, controlling law compels the conclusion reached by the majority.

¶68The question whether § 2 creates influence dilution liability is a close one-made so by language in Ashcroftrecognizing the importance and the value of such districts. My philosophical trouble with the controlling law’s sacrosanct view of the 50% rule *529flows from the fact that the Voting Rights Act endeavors to put minority voters on an equal footing in all aspects of the political process. See generally Stanley Pierre-Louis, The Politics of Influence; Recognizing Influence Dilution Claims Under Section 2 of the Voting Rights Act, 62 U. Chi. L.Rev. 1215, 1224 (1995)(“Indeed, Section 2 refers to open participation for minority voters in the ‘political processes leading to nomination or election’ as well as the opportunity ‘to elect representatives of choice.’ ”) Just as minority voters are not immune from the obligation to “pull, haul, and trade to find common political ground,” neither should a redistricting plan have the effect of operating unequally on a minority group’s ability to engage in these very activities.

¶69Participation in the political process is hard work. It is harder for minority groups who have suffered the legacy of a history of official discrimination. We heard compelling testimony from Deralyn Davis, the Chairman Emeritus of the Texas Coalition of Black Democrats, about just how hard it is for minority voters in the state of Texas. She described the grassroots efforts of her and others to build coalitions, mobilize, and increase the African American influence in the state’s political machine. The efforts did not focus on one location in the state, but extended statewide. The testimony of others was consistent.

¶70Under Plan 1000C, in use until the 2000 census, the black citizen voting age population of District 24 was 20.1%. Under Plan 1151C, the court drawn plan, District 24 has a black voting age population of 21.4%. The electorate in the Democratic primary over the last four election cycles has been roughly 64% African American. Both Dr. Lichtman and the State’s expert, Dr. Gad-die, agreed that current District 24 performs for African Americans because those voters control the primary election. The key to the performance of District 24 is the makeup of the balance of the district. It is a political reality that blacks and Latinos in Texas vote largely Democratic in the general elections. They do so because, at least in Texas, the Democratic candidates are generally more responsive to the concerns of these minority communities. Under Texas’s election scheme, in a Democratic leaning district, the key to a minority group’s ability to elect a candidate of its choice on an ongoing basis is found in the group’s practical ability to “pull, haul, and trade to find common political ground” in the Democratic primary. The ability to nominate in such districts is tantamount to the ability to elect.

¶71The Supreme Court recently reminded us that “the power to influence the political process is not limited to winning elections.” Ashcroft, — U.S. at —, 123 S.Ct. at 2512. Ashcroftnoted that “various studies have suggested that the most effective way to maximize minority voting strength may be to create more influence or coalition districts.” Id.at —, 123 S.Ct. at 2512-13 (citing David Lublin, Racial Redistricting and African-American Representation; A Critique of “Do Majority-Minority Districts Maximize Substantive Black Representation in Congress?,” 93 Am. Pol. Sci. Rev. 183, 185 (1999); Charles Cameron, David Epstein & Sharyn O’Halloran, Do Majority-Minority Districts Maximize Substantive Black Representation in Congress?, 90 Am. Pol. Sci. Rev. 794, 808 (1996); C. Swain, Black Faces, Black Interests 193-234 (1995); and Bernard Grofman, Lisa Handley, & David Lublin, Drawing Effective Minority Districts; A Conceptual Framework and Some Empirical Evidence, 79 N.C.L.Rev. 1383 (2001)). If the most effective way to maximize minority voting strength is to create more influence or coalition districts, then the most effective way to minimize *530minority voting strength may be to dismantle those districts in which a minority group has proven successful in its efforts to “pull, haul, and trade to find common political ground.”5

¶72Ashcroftleaves the state with flexibility to choose the method of creating fewer black majority-minority districts in favor of a greater number of influence or coalition districts. Alternatively, a state enjoys the flexibility to strengthen its existing majority-minority districts to ensure those districts will continue to elect candidates of choice of the minority community. In the Dallas/Fort Worth area, Texas chose neither route. Texas identified District 24, in which the minority community played a decisive role in the nomination and election processes and, because that group was not a literal majority and elected an Anglo Democrat, rearranged a cohesive community of those voters not into new District 12 (where they might have an impact on the general election), but into new District 26. This arrangement has the practical effect of eliminating the minority voters’ political influence. But it has a much larger effect: by treating the minority group in this manner, the state action, I fear, will have the effect of destroying the minority group’s hope. It is not accidental that, unlike the plan in Ashcroft, the present plan had overwhelming opposition from the minority legislators. The law’s insistence on a 50% majority shields this move, but at the same time it ignores the political and social reality that there is more to participation in the electoral process than winning elections.

¶73It is no answer that the disparate destruction of such coalitions might be tough to identify and even harder to remedy. Our charge is not to decide just the easy cases: it is to apply and, when necessary, enforce the protections of the Voting Rights Act. The question, difficult as it may be to answer, should be whether the treatment of such minority coalitions disproportionately affects those voters’ ability to participate in the political process. The remedy need not require the protection inviolate of an old district, but it might require the creation of a more competitive one.

¶74The treatment of the minority coalitions in old District 24 was inconsistent with the purposes of the Voting Rights Act. The evidence demonstrates that District 24 under Plan 1151C and Plan 1000C functioned as a district that fostered our progression to a society that is no longer fixated on race. Under this record, the black voters in old District 24 repeatedly nominated and helped to elect an Anglo congressman with an impeccable record of responsiveness to the minority community. To this end, I view the fact that Congressman Frost has not had a primary opponent to reflect favorably on his record. I would credit the testimony of Mayor Ron Kirk and Senator Royce West. Their testimony concerning how District 24 functions for the African American community is persuasive. Although the State, for § 5 purposes, created a new black opportunity district in the Houston area, this is of little consolation to the minority voters in old District 24, particularly the African American community in Tarrant County. The political influence of that minority community has been diluted, understanding, as *531did the court in Ashcroft, that power at the polls and participation in the political process is not always measured by mathematical majorities. Given the current state of the law, however, I join the court’s judgment denying relief on the plaintiffs’ claim that the State violated § 2 by the dismantling of District 24. For the same reasons, I necessarily join the court’s judgment denying relief with respect to the plaintiffs’ claims that the changes to Districts 1, 2, 4, 9, 10, 11 and 17 resulted in cognizable influence dilution claims.