1 1 2 3 KERR COUNTY COMMISSIONERS' COURT 4 Special Session 5 Wednesday, October 6, 2021 6 9:00 a.m. 7 Commissioners' Courtroom 8 Kerr County Courthouse 9 Kerrville, Texas 78028 10 11 12 13 14 15 16 17 18 19 20 21 22 23 PRESENT: ROB KELLY, Kerr County Judge HARLEY BELEW, Commissioner Precinct 1 24 T. BECK GIPSON, Commissioner Precinct 2 DON HARRIS, Commissioner Precinct 4 25 2 1 I-N-D-E-X 2 NO. PAGE 3 *** Chuck Kimbrough's initial assessment for 3 redistricting. 4 *** Adjournment. 41 5 *** Reporter's Certificate. 42 6 * * * * * * 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 JUDGE KELLY: Court will come to order. It 2 is Wednesday, October the 6th, 2021, 9 o'clock in the 3 morning, and the Kerr County Commissioners' Court is in 4 session for a special court agenda. 5 And what we have today is we have our 6 outside counsel, Chuck Kimbrough, here and he's going to 7 provide an initial assessment for our redistricting and 8 then we'll go into Executive Session and discuss it. 9 But I want the public to know that we're going to hear 10 the initial assessment and then go into Executive 11 Session. So with that, Mr. Kimbrough. 12 MR. KIMBROUGH: Thank you, sir. May it 13 please the Court. 14 JUDGE KELLY: Yes, sir. 15 MR. KIMBROUGH: I'm Chuck Kimbrough with 16 Bickerstaff Heath in Austin. And thank you again for 17 having me regarding the initial assessment meeting 18 regarding the County's 2021 redistricting project. 19 On September the 26th, I sent you a letter 20 through the County Judge's office. It's got a 21 confidential attorney-client privilege marker on it but 22 when we begin to talk about it and those documents in 23 this meeting they become full out public -- public 24 documents. With our consent, of course. So the census 25 data came out a little early. We were able to get what 4 1 they call the legacy format, the old computer format. 2 Just after mid August, I can't remember the 3 exact date, we inputted the data to our system and began 4 working our projects all across Texas. Yours is one of 5 them. The letter that I sent you has some attachments. 6 It has a 33-page attachment of charts and maps, and then 7 some legal -- summaries of some legal issues at the end. 8 And then there are -- there are two proposed vote orders 9 that we're going to highly recommend that you consider 10 and adopt today in public session. 11 The first one is a order adopting criteria 12 for use in the 2021 redistricting process. And the 13 second one is an order adopting guidelines for persons, 14 for people submitting specific plans to you and 15 providing comments. I'll take those up and discuss them 16 in just a moment. 17 So all across the country and Texas the 18 criticism of the census data is it's an under count. 19 It's light. It's low. We worried about that. And now 20 that the numbers have come out, particularly in this 21 part of Texas. The criticism is that the numbers are 22 not as high as they really should be. The pandemic 23 certainly contributed to that and -- and other factors. 24 Other factors. But as we had discussed in here before, 25 the census data is the baseline under federal law for 5 1 determining, analyzing, approving plans. Redistricting 2 plans. And they form the basis in numerical, the 3 statistical basis for a number analysis and federal 4 litigation challenging restricting plans in federal 5 court, so while the -- the data may be criticized, we 6 are resolved to accept it and deal with it and use it. 7 Okay. The arguments about how to fix it is 8 for another decennial period; not -- not this one. It's 9 certainly not for us to debate anymore or spend any time 10 worrying about, because we're shooting towards that 11 November 12, 2021 deadline to close out this project for 12 the Commissioner precincts, because Saturday morning, 13 November the 13th, 2021, is the first day in Texas that 14 a person can file for office to get on the ballot and 15 those people need to know where the jurisdictional lines 16 are for the precinct that they're shooting for, to -- to 17 be an office holder on. So that's why the November 12 18 deadline is important. 19 And we have, from a scheduling standpoint, 20 Kerr County scheduled for, on our schedule and your 21 schedule, what we call a workshop public hearing a week 22 from tomorrow. In this room, October the 14th at 23 9 o'clock. I will give you the documents to predicate 24 that meeting, that workshop/public hearing meeting. The 25 public notice documents I'll provide and work with the 6 1 County Judge and staff to do that, and the County 2 Attorney's office. 3 And it's at that meeting that a drawing 4 session will occur, where through technological hookup, 5 I will be with you here in this room, along with the 6 public, but our GIS drawer will be in Austin hooked up 7 on our GoToMeeting setup where the maps are placed on 8 the screens where everybody can see them, and the lines 9 can move as we discuss and direct and think about. 10 And when the lines move and are set, then 11 the demographic data comes up on the -- on the bottom of 12 the screen, and so it's -- it's highly effective and 13 efficient if we can do it that way. But I will be here. 14 But the drawer will be in Austin, linked up, hooked up. 15 JUDGE KELLY: And so the public understands, 16 this is a very sophisticated program that you have, 17 computer program, that we will interface with our IT 18 Department and be able to have your assistant in Austin 19 on the computer with the program, and the -- and we here 20 in the courtroom, and the public will be able to see as 21 we move these precinct lines, how it would affect -- 22 MR. KIMBROUGH: Yes, sir. 23 JUDGE KELLY: -- lives. 24 MR. KIMBROUGH: Yes, sir. And if you were 25 to say, for instance -- I've forgotten who the drawer 7 1 is, we've got several of them. I think it's Mr. Arseno. 2 But -- 3 JUDGE KELLY: At this stage, Chuck, it's a 4 30 second rule. You'll remember the name in 30 seconds. 5 MR. KIMBROUGH: Okay. All right. So what 6 I'm getting at is this: You'll -- you'll be sitting 7 here and you'll say, Mr. Arseno, could you move that 8 north/south boundary over to, you know, 300 yards or so 9 to hit that road? Yes, sir, I can do that. There goes 10 the line. And then he'll say is the map right? And 11 everybody will say yeah. Then he'll push the button and 12 the new demographic data comes up immediately from the 13 2020 census. 14 JUDGE KELLY: But it's with those -- the 15 exact census though? 16 MR. KIMBROUGH: Yeah. Yes. Yes. 17 JUDGE KELLY: So that -- so that this is -- 18 MR. KIMBROUGH: Yeah. That's -- that's what 19 we got in mid August, right after mid August. That -- 20 that was the 2020 disclosure from the census bureau -- 21 the 2020 data, I should say. And so it's all 22 electronic. It's way above my expertise level to 23 explain census blocks and shake files but I know they're 24 important and that's what you see the result of when you 25 see those lines on the map. 8 1 JUDGE KELLY: And the only point I'm trying 2 to make, Mr. Kimbrough, is that the public is going to 3 be able to see this live, exactly as any movement of any 4 Precinct line would be. 5 MR. KIMBROUGH: Yes, sir. 6 JUDGE KELLY: And I think that's important. 7 MR. KIMBROUGH: That's accurate. Okay. 8 Let's talk about the numbers. On the second page of the 9 letter, the one person, one vote requirement is 10 discussed in detail, and then it refers you to the 11 appendix material which gives a more -- a more detailed 12 summary of the legal issues. 13 But at the bottom of page one of the letter, 14 next to the last paragraph, the three core principles of 15 a lawful federal -- federal law compliant restricting 16 project, the three core principles are as follows: 17 Number 1. The one person, one vote balancing. To reach 18 a balance, a countywide balance, not just precinct 19 balance but a countywide balance, of not more than ten 20 percent. However, even a balanced precinct, like we 21 discussed before, can be improper if it, number one, 22 violates critical provisions of the Federal Voting 23 Rights Act of 1965, and the amendments of it since then. 24 Or violates the narrowly tailored race analysis issues 25 defined in the famous 1993 Supreme Court case called 9 1 Shaw versus Reno. So you don't have to worry too much 2 about being an expert on those federal precedents. We 3 give you that extra summary in the letter to let you go 4 to school if you want to. 5 But the key -- the key principle I want you 6 to remember now, while we get -- get into the numbers is 7 this: Even a balanced county in terms of one person, 8 one vote, can have a plan that violates protected 9 minority voting status. And we -- and, you know, the 10 law says you can't do that. So we're aware of those 11 federal precedents and we're watching to make sure that 12 that does not happen. 13 Questions about the three core principles 14 before we get into the numbers? 15 JUDGE KELLY: I want to make sure the public 16 understands that those three principles, one person, one 17 vote. That's simple. The second one is a 18 non-discrimination standard in establishing the 19 precincts. But then we have a footnote to that which is 20 principle number three is we have to take into 21 consideration the minority percentages. So it's not 22 that we discriminate, but we -- we kind of pay more 23 attention to the minorities to make sure we don't -- 24 and I believe the phrase you used the last time you 25 talked to us was, we don't crack and we don't pack the 10 1 precincts. 2 MR. KIMBROUGH: Yes, sir. The -- the phrase 3 you see in the literature sometimes is racial 4 gerrymandering. And -- and that says it plain. You're 5 not supposed to do that. But at the top of page three 6 of our letter, really at the bottom of four and the top 7 of three, talks about the Shaw versus Reno deal and -- 8 and the case and Shaw said, if you're going to follow 9 the voting rights act prohibitions and particularly 10 Section 2 prohibitions of the Voting Rights Act, then 11 race must be an issue when you do a proper redistricting 12 plan. 13 So Shaw versus Reno says okay. Recognize 14 that. Supreme Court of the United States says we 15 recognize that, but here are the very strict standards 16 by which you can use race as a factor to determine a 17 redistricting plan and they're listed there at the top 18 of page three of the letter. 19 One, the race based factors have to be used 20 in the furtherance of a compelling state of interest. 21 And their application must be narrowly tailored. 22 Meaning used only to the minimum -- minimum extent 23 necessary to accomplish the compelling interest of the 24 government. Now, that's legal phrasing that you might 25 interpret as well, they'll know it when they see it. 11 1 They can't really define a standard without -- without 2 facts to support it. There's something to that. 3 Particularly any trial lawyer -- 4 JUDGE KELLY: They tell -- tell us not to 5 discriminate and then they say but you must consider. 6 MR. KIMBROUGH: Yeah. 7 JUDGE KELLY: Yeah. 8 MR. KIMBROUGH: And we call it at the top of 9 page three on the right-hand side of the square or the 10 rectangle, you walk the legal tightrope. Most of the 11 time the issues are not even close. All right. So now 12 that's -- that's something that we found. In these, you 13 know, non-urban areas I'll say, now you're -- you're way 14 urban than Lockhart, Texas where I'm from, or just 15 outside of Lockhart, but you're not, you know, exactly 16 San Antonio yet, you know. 17 JUDGE KELLY: Don't -- don't say that. 18 MR. KIMBROUGH: Okay. All right. So the 19 numbers. The 2010 census data showed -- 2010, the last 20 decennial session or the cycle, showed the total 21 population of Kerr County, Texas was 49,625 people. 22 49,625. The April the 1st, 2020 census data shows total 23 population of 52,598. 52,598. An increase of 2,973 24 people or equating to a positive -- a plus 5.99, we'll 25 say six percent increase. 12 1 Again, criticized as under count, but 2 nevertheless a six percent increase equating the 2,973 3 people. Under one person, one vote. This is the 4 discussion that's summarized on page two of the letter. 5 Under one person, one vote, the concept 6 involves a series of arithmetic problems. Under one 7 person, one vote, that -- that sort of arose out of the 8 no taxation with equal representation concepts of the 9 American Revolution, and in our law from the very 10 beginning of the country's existence. The corollary to 11 that is, okay, I want my representation to be equal, one 12 person, one vote to balance the power across the United 13 States in these local governments and state governments. 14 And so the way you try to begin analyzing 15 one person, one vote for a County, is to take the total 16 population recorded for 2020, 52,598, you have four 17 Commissioner precincts. So you divide 52,598 by four to 18 come up with a number that is the ideal number of people 19 to be in each County Commissioner Precinct based on the 20 2020 population figures. 21 And when you do that math, the answer is 22 52598 divided by four is 13,149.5 people. So we'll 23 round up and call it 13,150 people in each Precinct. 24 And if you'll look at the attachment, I put base numbers 25 on them. It'll be the -- I think it's Number 2. Yeah, 13 1 page two there in the top right-hand corner and on the 2 maps that lay sideways, you know, it'll be the left-hand 3 side of a portrait. So when you look at -- look at this 4 chart, page two. Please. 5 COMMISSIONER BELEW: Just so you -- when you 6 look at this, you've got two on the top and one on the 7 bottom. So you want the top number or the bottom 8 number? 9 MR. KIMBROUGH: Yes, sir. That's a good 10 point, Commissioner. Top right. Top right. Those are 11 the base numbers I added. 12 So the ideal size column is the third column 13 from the left, you know. And it's got 13,150 in each 14 Precinct, now. Then what you do is you put into that 15 chart for each Precinct, the actual number of people 16 that the 2020 census data shows is living in each 17 Precinct. 18 Now, remember we're putting the 2020 census 19 data people into the Precinct as your Precinct lines are 20 presently constituted. Active and operating. And then 21 we'll do the analysis to see whether under those 22 existing lines you are out of balance, the County is out 23 of balance. And if you're out of balance, then you must 24 redistrict under Federal law. 25 JUDGE KELLY: Right. 14 1 MR. KIMBROUGH: So how we do the next part 2 of the arithmetic is we're going to use -- let's just 3 say Precinct 1, for example. The ideal standard is 4 13150, ideal size. 13,089 people are recorded as living 5 in that Precinct. That's a negative .46 percent under 6 the standard line. You're looking at each Precinct to 7 see above the ideal standard of the target. 8 What does the census for 2020 show about 9 whether the number of people are over that standard, a 10 positive deviation, or a negative deviation. Over 11 the -- over the target or -- or under the target. And 12 you -- you see the deviation chart column, we talked 13 about Precinct 1. 14 Precinct 2 had a positive 8.57 percent over 15 the standard. Precinct 3, a negative 6.88 percent under 16 the standard. Precinct 4, a negative 1.24 percent under 17 the standard. 18 So you can look at the deviation numbers and 19 say wow, none of those numbers are ten percent or more. 20 Whether it's positive or negative. You know, we talked 21 about the -- what we call the ten percent safe harbor 22 rule the last time I was here and -- and it's basically 23 a rule that says in balancing, if -- if the -- if the 24 deviation -- the ultimate deviation is no more than ten 25 percent above or ten percent below the standard, then -- 15 1 then the precinct is balanced. Okay. That -- they are; 2 however, that's not the end of the story. Because the 3 County as a whole must balance. Repeat. The County as 4 a whole must balance. And that math is the last part of 5 the arithmetic. 6 You take -- to do that look at your chart, 7 you take the biggest positive number that exists on the 8 chart, which is Precinct 2, plus 8.57 and then you look 9 to see where the biggest negative is. That's 10 Precinct 3. Negative 6.88. And then you add the two 11 numbers together. 12 The 8.57 positive and the negative 6.88 but 13 you do not use the rule that we learned in school about 14 adding positive and negative numbers. You just add the 15 arabic numbers together. And when you add 8.57 to 6.88, 16 you come up with, my math, is 15.45 but we can't put all 17 the decimals. The computer, you know, program runs it 18 and we can't put all the decimals on the chart. So the 19 -- the computer says it's rounded to 15.46. That total, 20 15.46, is what we call the maximum deviation for the 21 County indicating an imbalance or out of balance 22 position based on the ten percent rule. So clearly, 23 15.46 is more than ten percent. 24 It is our opinion, conclusion, that the 25 County Commissioner precincts are sufficiently out of 16 1 balance in order to require that they be revised and 2 redrawn under federal law in this 2021 project. Do you 3 understand our opinion? 4 JUDGE KELLY: Yes. And I want the public to 5 understand it. The target goal is 13,150 persons per 6 Precinct. And Precinct 2 is the largest Precinct and it 7 has 14,277. And Precinct 3 is the smallest, and it has 8 12,245 and it's that difference between the largest and 9 the smallest that cumulates -- accumulates to 15.46 10 percent and requires redistricting. 11 MR. KIMBROUGH: The other two precincts, one 12 and four, are small deviations. A negative deviations, 13 but we always say all four precincts contribute to it. 14 Now, the numbers of two and three can't be overcome by 15 the number -- the deviation numbers on one and four. 16 But we still must consider all four precincts. 17 JUDGE KELLY: Right. 18 MR. KIMBROUGH: Now -- 19 JUDGE KELLY: And Precinct 1 is the one 20 that's closest to where we need to be. 21 COMMISSIONER BELEW: Yeah. 22 MR. KIMBROUGH: So our conclusion is that 23 the County Commissioner precincts should be redrawn and 24 revised pursuant to federal law in this project. 25 Now, the second page of the letter, that big 17 1 paragraph at the top. Look at that last sentence. 2 Please note that the population balance requirement does 3 not apply to justice precincts, meaning J.P. and 4 Constable precincts, because those are not legislative 5 positions. That's an important distinction. 6 The Commissioners' Court sits -- well, you 7 have a lot of hats. But one of your big hats is being a 8 legislative body, you make policy. Justice of the Peace 9 in Texas is the Judge of a trial court, the justice 10 court. You don't make policy. You rule on cases. 11 Constables are actually considered law 12 enforcement officers in Texas, and they don't make 13 policy. They carry it out. So the one person, one vote 14 rule, that -- those -- we don't have to worry about 15 that. Constable -- J.P. and Constable lines under the 16 Texas standards, rules, including the Constitution, can 17 be drawn and redrawn for the convenience of the people. 18 If you want us to think about redrawing your Constable 19 and J.P. lines, we'll be happy to do it. But again, 20 you're not required to do it under the -- you know, the 21 concepts that we have in discussing here about one 22 person, one vote. 23 Election Precinct -- 24 COMMISSIONER BELEW: Wait, wait, wait. What 25 would that -- you're saying that Precinct 1 Constable, 18 1 for example, doesn't stay within the parameters, 2 whatever they are of Precinct 1? 3 JUDGE KELLY: Doesn't have to. 4 MR. KIMBROUGH: You -- you can choose 5 otherwise. You can choose to -- 6 COMMISSIONER BELEW: What -- would there be 7 any advantage to that, Mr. Kimbrough? 8 MR. KIMBROUGH: I believe y'all have been 9 what we call synced up for a long time now, have you 10 not? Remember, we talked about what coterminous meant. 11 You remember the -- okay. We believe that's the modern 12 standard. 13 JUDGE KELLY: We do, too. But -- but what 14 we mean, I think, is if you had a sitting office holder, 15 say it's a Constable or a J.P., they wouldn't 16 necessarily have to live within the technical Precinct. 17 MR. KIMBROUGH: Oh, okay. 18 COMMISSIONER BELEW: There's-- there's 19 the -- 20 JUDGE KELLY: But we sync them, we put all 21 synchronized so that they're the same. 22 MR. KIMBROUGH: Synchronized with the 23 Commissioner -- 24 JUDGE KELLY: Right. 25 MR. KIMBROUGH: -- for that number Precinct. 19 1 COMMISSIONER BELEW: Yeah. 2 MR. KIMBROUGH: That -- that's the modern 3 way to do it but it's not that way across the state. 4 JUDGE KELLY: And so the public understands, 5 we don't have all these -- here's the Precinct 1 for the 6 Commissioner. Here's Precinct 1 for J.P. Here's the 7 Precinct 1 for Constable. We don't want that. We want 8 Precinct 1 in Precinct 1. Period. 9 COMMISSIONER BELEW: But, if you -- you 10 know, you have an elected official that makes policy 11 that needs to remain within their Precinct. 12 JUDGE KELLY: Right. 13 COMMISSIONER BELEW: But if the Constable 14 lives across the street from him and the line is down 15 that street and he's on the other side -- 16 JUDGE KELLY: The way we've been doing it -- 17 COMMISSIONER BELEW: -- it's a deal breaker. 18 You couldn't cut in just that -- 19 MR. KIMBROUGH: We need to watch that. We 20 need to watch that. 21 COMMISSIONER BELEW: Okay. 22 MR. KIMBROUGH: That's -- that's the same 23 thing as watching where all -- you'll see on the vote 24 border about guidelines and criteria that -- that 25 incumbents and constituencies is -- is a factor that can 20 1 be considered in redistricting. So that is why we 2 wanted to know where each of your residences were -- 3 are. Excuse me. So that we can make sure if lines 4 begin to be redrawn that we do not consider drawing 5 someone out of their District and out of their Precinct. 6 If you want to keep the J.P. Constable lines coterminous 7 or synced up with the Commissioner lines, then we -- we 8 need to watch that. We need to be aware of those 9 issues. 10 COMMISSIONER BELEW: That was the word. 11 Coterminous. 12 MR. KIMBROUGH: Yeah. Well -- 13 JUDGE KELLY: And just so the public 14 understands, we prefer coterminous. 15 COMMISSIONER BELEW: Yeah. 16 MR. KIMBROUGH: Election precincts. 17 Sometimes called voting districts in -- in other places, 18 other states. Our engagement agreement with you says if 19 you want us to review your election precinct analysis 20 for conclusions and delivery, timely delivery to state 21 government, like the law says, we will do so. 22 Now, you will recall that our Texas law, 23 State Law, Chapter 42 of the Election Code requires 24 every County in every odd year to analyze its current 25 set of election precincts, which can change from time to 21 1 time, analyze them to make sure they're compliant with 2 the rules in Chapter 42 of the Election Code. 3 In a regular odd year, odd numbered year -- 4 in a regular odd numbered year that is not a 5 redistricting year, the deadline for delivering that 6 data to the Secretary of State's Office and the 7 legislative council is May 1. In a redistricting year 8 the deadline is October the 1st. And so the fruit 9 basket has turned way over on that one. 10 And so currently the Secretary of State's 11 Office is not sure when the delivery date or the due 12 date for election Precinct analysis is, because it's 13 waiting -- the Secretary of State is waiting on the 14 legislature to resolve some matters. We think it'll 15 probably be mid to late December. Typically what we do 16 for a County is resolve their Federal decennial 17 redistricting obligations for County Commissioner 18 precincts and justice constable, if necessary, and then 19 start looking at election precincts. If -- if -- if I 20 have -- if I have my thinking right, I want to say 21 you're -- you're scheduled for -- to consider approval 22 of a revised plan for the Commissioners precincts, one 23 of the first early parts of the first two work weeks in 24 November, you know, well before the November 12 25 deadline, and that would give us a month or so to do 22 1 work on election precincts. If that's what y'all would 2 like us to do. 3 All right. Now last, in terms of public 4 presentation. These two vote orders, and I've got clean 5 ones for the Court's consideration and approval. And it 6 will be our recommendation that both orders, the 7 criteria order and the guidelines order be considered, 8 approved and enacted today to, in our words, properly 9 initiate the project. 10 We have been discussing the project for 11 sometime now with y'all, with the Court and staff. But 12 really today, the initial assessment is today that you 13 solve the result of the analysis we performed on initial 14 assessment and see that you have a federal obligation. 15 And I'm confident that you will follow the law and -- 16 and continue the project to redraw properly and lawfully 17 the County Commissioners precincts. 18 But it's a good idea on the start of the 19 project, on the kickoff of the formal part of the 20 project, to lay down the rules that you think are 21 important for not -- not just you to follow, but anybody 22 out there in the public who may want to submit an 23 alternative plan, a third party redistricting plan to 24 you or to people that want to make public comment 25 regarding any plan that's being considered by the 23 1 Commissioners' Court. 2 So we break those concepts into two orders. 3 The first one is a criteria order. And it recites in 4 the -- in the preliminary provisions, the law that's 5 important. The fact that there is a population 6 imbalance regarding Commissioner precincts. 7 That's the -- it's the intent of the 8 County to follow the federal law, including the Shaw 9 versus Reno precedent and the anti-discriminatory 10 provisions of the Voting Rights Act. And when you get 11 down to the action items, you go all the way to the 12 bottom of the page, number three. And it says, To the 13 extent practicable, the following will occur. 14 And then you turn the page, and you have 15 A through I, and four and five, that really set out the 16 criteria. And when you look at most of them, they're 17 just basic common sense, good rules of the road, that 18 you're saying ought to be out there. For instance, 19 easily identifiable geographic boundaries should be 20 followed. Mainly roads. Public roads. 21 Commissioner precincts should be proposed to 22 hold voting Precincts if practical -- practicable. But 23 there are some exceptions to that, as C identifies. 24 While D recognizes, well sure you know, the county's out 25 of balance, one line or some lines are going to have to 24 1 change for sure, we still don't want to make a wholesale 2 change of the way that the precincts look, if 3 practicable, because we have an existing Commissioners' 4 Court Precinct configuration that has worked for 5 sometime. 6 E. That's the ten percent rule. That's the 7 one person, one vote rule said in a more formal fashion. 8 You're going to follow that rule it says. F. The 9 Commissioner precincts should be compact, and composed 10 of contiguous territory. That's sort of basic, isn't 11 it. Compactness may be a functional as well as a 12 geographical dimension. 13 And functional, you know, I'm going to -- if 14 there was a big river, okay, and you -- and you had one 15 precinct split in the big river and the only bridge was 16 20 miles that way then you might want to think about 17 functional compactness in a situation like that because 18 of a natural boundary. 19 G is the incumbent constituency issue that I 20 raised to you before. H says you're going to follow 21 Shaw versus Reno. I says you're not going to violate 22 the Voting Rights Act by packing or cracking basically. 23 Look at five. At the bottom of page two and the top of 24 page three. Any plans submitted to the Commissioners' 25 Court, you know, like we talked about before, a third 25 1 party submission, must consider and analyze all four 2 commissioners Precincts; not just one part of the 3 County. But a plan that addresses the whole County. 4 Questions about the criteria order? If 5 there are none, we recommend its adoption and approval 6 today. 7 The guidelines order is not long, but it's a 8 different scope. It's a statement from the Court to the 9 people, to the public that says, all right now, we're 10 doing this project. And if you want to participate by 11 submitting a plan to us, no matter who you are, no 12 matter where you live, there are certain things that 13 that plan must have in it because if they're not in 14 there, we can't do our job to fairly and adequately, 15 efficiently and in a timely manner review it. 16 So the front end recitals are similar to 17 before in terms of reciting the law that's appropriate 18 to -- to this part of it, this part of the project, and 19 that these guidelines are necessary to provide for 20 the -- and this is just our phrasing -- the orderly 21 consideration and evaluation of redistricting plans 22 which may come before the Court. And that includes 23 public comment on any plan that you're thinking about. 24 Whether it's your own internal produced plan or options 25 for a plan or a third party plan submitted to you. 26 1 So the action item really starts with number 2 three at the bottom of page one, with just some basic 3 common sense rules of the road. The proposed plan that 4 somebody gives you needs to be in writing and it needs 5 to be legible. If they talk it, if they speak it at a 6 public meeting, that's great. But have -- you know, 7 without -- without the written analysis and particularly 8 the mapping, extremely difficult for y'all to -- to 9 analyze correctly and -- and give it -- give due weight 10 and consideration. 11 Number four. Any plan must show, like our 12 initial assessment charts do, the total population, and 13 voting age population for African Americans, Hispanics, 14 Asians and other races for each proposed Precinct based 15 on the 2020 census data. Without that population 16 breakdown, you're probably not going to have sufficient 17 enough information to do the -- the voting right -- the 18 section two voting rights analysis as well as the Shaw 19 versus Reno analysis. 20 Next, the plan submitted to you must 21 redistrict the entire County, not just part of the 22 County. Next. Anybody that submits a plan has to 23 follow the redistricting criteria of the first order 24 that you'll be considering and hopefully entering today, 25 the criteria order. 27 1 Next. If comments are going to be 2 submitted, they need to be -- even if they're spoken 3 orally, they need to be also reduced to writing. Now I 4 know that's difficult. There's most of the time a court 5 reporter present for your meetings. I -- so if -- if 6 someone were to show up and -- and just make public 7 comment, at least the reporter record would -- would be 8 there of those written comments. 9 But it would be wonderful if we could 10 convince the folks ahead of time to write something down 11 that summarizes your written comments made to the Court. 12 That -- that really is the best way to get the tone and 13 the form and the scope of what they're trying to get 14 across. 15 Finally, No. 9. All comments, any proposed 16 plans, must be submitted to Court by the close of the 17 public hearing. By the close of the public hearing 18 scheduled, which is October 14th, 2021. Now, if these 19 two orders are approved, I'm staying around today to 20 help to make sure that they get onto your website, 21 immediately, okay? If they're approved. 22 And then we'll give you -- we'll work to be 23 giving you the notice documents in English and in 24 Spanish to put on your website and post it at courthouse 25 door to properly predicate the meeting on the 14th. 28 1 JUDGE KELLY: One thing I'd like for you to 2 clarify is that in order to make sure that we comply 3 with the Voting Rights Act, the federal Voting Rights 4 Act, and the Shaw versus Reno analysis, we will be 5 considering not just total population, but voting age 6 population. 7 MR. KIMBROUGH: Yes, sir. That is correct. 8 The voting age population is really the more accurate 9 statistical measurement for us. We certainly consider 10 that. These things are supposed to last for ten years, 11 you know, so somebody that's not voting age now might be 12 voting age soon. But you're correct. You'll see those 13 charts in the packet. 14 JUDGE KELLY: I noticed that. I just wanted 15 the public to understand that you're going to come to us 16 with a proposal. We've got to break it down just like 17 you provided for in this -- these guidelines. 18 MR. KIMBROUGH: Yes, sir. And -- 19 JUDGE KELLY: And it's got to be by voting 20 population; not just total population. 21 MR. KIMBROUGH: Yes, sir. We -- we got -- 22 we call it VAP. Okay. Voting age population. And a 23 summary of the voting age population chart is on page 24 three of the packet. 25 JUDGE KELLY: Right. 29 1 MR. KIMBROUGH: Again, as of right now, 2 everything -- every document that I've talked about is 3 full live public document. People can come get a copy 4 of it. Come review it. Put it on your website if 5 that's what you want to. It's -- it's up to you. But 6 they can see what your lawyers produced to get us to the 7 point right now where I'm speaking to you about it. 8 JUDGE KELLY: You sent us the -- the 9 eventual assessment. We have all the data here. It's 10 open to the public. 11 MR. KIMBROUGH: It is. 12 JUDGE KELLY: When you sent it to us 13 originally, you asked for us to keep it confidential 14 until we had the meeting today? 15 MR. KIMBROUGH: That is correct. 16 JUDGE KELLY: And so now it's open for the 17 public if they'd like to see it? 18 MR. KIMBROUGH: Yes, sir. And -- and 19 frankly, there's no way to -- once I begin speaking 20 about it and y'all are asking me questions and we're 21 holding up documents, it's a true life public document 22 from stem to stern. 23 JUDGE KELLY: And that's also the reason 24 we're going to go into Executive Session once we're done 25 with this. So we can talk -- we can talk to you and get 30 1 advice from you that is still confidential until we go 2 to the public meeting. 3 MR. KIMBROUGH: Yes, sir. This -- Judge 4 Kelly, you know, lawyer to lawyer here, this is what we 5 call a mixed question of law in fact. To try to figure 6 out from a procedural standpoint and a technical 7 standpoint, okay, how do we solve this problem? We hope 8 it's not an insurmountable problem that requires 9 dramatic changes. I don't think it will. But for you 10 to get advice from me on those mixed questions of law 11 and fact is entirely within your purview, and you may do 12 so, if you have a motion and a second to go into closed 13 session for attorney-client consultation regarding those 14 project issues. 15 JUDGE KELLY: Right. 16 MR. KIMBROUGH: And -- but before -- 17 JUDGE KELLY: But the two orders that you've 18 given us, the first one is the criteria, and that's 19 basically telling we're going to do this the legal way. 20 MR. KIMBROUGH: Yes, sir. 21 JUDGE KELLY: And then the -- the guidelines 22 over here, if anybody wants to provide additional 23 proposals to us, these are the guidelines that they're 24 going to have to follow. 25 MR. KIMBROUGH: Or -- or public comment. 31 1 JUDGE KELLY: Or public comment. 2 MR. KIMBROUGH: Yes, sir. 3 JUDGE KELLY: So this -- this -- this is the 4 fair way. This is -- from -- this is what we're going 5 to play right down the middle on both of these. 6 MR. KIMBROUGH: That's one of the best 7 analogies that you can give. And for us, there's two 8 big reasons to approve those orders. The first is it 9 does what we say it -- they do what we say they do in 10 terms of giving notice and it gives you an opportunity 11 to have a guidepost or a two set -- two documents that 12 you look to to figure out what -- what your obligations 13 are because you're making policy when you enact those 14 orders. 15 But the second -- the second one, the second 16 reason to do it, to do those orders, is -- is I think 17 the more important. And that's this. What is the 18 criticism of redistricting all across the state and the 19 country right now? 20 JUDGE KELLY: Gerrymandering. 21 MR. KIMBROUGH: Yes. Highly partisan. 22 Power oriented. If someone were to look at a County 23 hypothetically and say well, we're just going to see how 24 they're doing, how they're approaching this process, a 25 County that works hard on the front end, the governing 32 1 body, to learn what its legal obligations are under the 2 law, and works on the front end, even passes orders 3 laying down the ground rules on the front end to follow 4 those legal obligations, and to protect minority voting 5 rights according to federal law, that goes a long way to 6 sort of slow down and diminish any criticism of 7 gerrymandering. I think it's a real important thing to 8 consider when you start a project like this, figure out 9 what the law is and try hard to follow it. These orders 10 manifest that intent and motive. 11 Can you see what I'm saying? 12 JUDGE KELLY: Absolutely. 13 MR. KIMBROUGH: To -- to try to figure out 14 your obligations under the law and follow them. Not 15 just the spirit of it, but follow them actually. 16 COMMISSIONER BELEW: Well, the law itself 17 assumes segregation of neighborhoods and so on. So some 18 of that stuff has changed since it began. And it's 19 becoming and will become, I think, obsolete. But it has 20 become more so since the -- was it 1965? 21 MR. KIMBROUGH: Yes, sir. 22 COMMISSIONER BELEW: At a time when you had 23 predominantly segregated neighborhoods. That's a lot 24 less visible these days than it was in 1965. So we're 25 still dealing with, I think, archaic rules, the whole 33 1 concept of it seems to be. That's my two cents. 2 MR. KIMBROUGH: Your position is 3 historically correct. And you remember when we talked 4 about this matter before, and I told you that since the 5 2011 project that we helped you with, local governments, 6 state governments no longer have to send their approved 7 plan, redistricting plans in to the civil rights 8 division of the Department of Justice in Washington for 9 preclearance. 10 In 2011 we had to do that. We sent it off 11 and your plan was pre-cleared by DOJ. There is a famous 12 case, Commissioner Belew, called Shelby County Alabama 13 versus Holder, around 2013, 2014. And the issues in 14 that case directly challenged -- I say directly, I 15 believe directly challenged, whether those redistricting 16 rules for governments in the south and the southeast and 17 some parts of the southwest, were -- whether we even 18 needed them anymore. 19 And the Supreme Court was a split vote. But 20 the Supreme Court decided no, we're -- we want to make 21 sure that those rules stay in place. But you no longer 22 have to pre-clear those plans through DOJ in Washington 23 D.C. 24 So all we do here is realize that the 25 Federal -- the three principles: One person, one vote. 34 1 Don't violate the Voting Rights Act. And pay attention 2 and follow the Shaw versus Reno construct. They're 3 still part of our law. 4 And if you draw a plan, you must draw the 5 plan lawfully under the concepts that we've been 6 discussing. But you don't have to send it in to 7 Washington to get preclearance from DOJ. All you have 8 to do is consider, approve and enact the plan. After 9 it's enacted, give the people notice. Let them know 10 where they can come get a copy of it. 11 JUDGE KELLY: And by following these 12 criteria and guidelines. 13 MR. KIMBROUGH: Yes, sir. And then, you 14 wait and see if it's subject to a challenge or not. 15 And, you know, I need to also say this. It's -- it's 16 sort of basic, but you're working in 2021 to develop a 17 plan that goes into effect January the 1st of 2022. All 18 right. So nothing is changing between now and 19 Christmas -- or the change of the calendar year. 20 Now, in Texas, the first day to get on the 21 '22 ballot happens to be November the 13th, all right, 22 one day after the deadline, you know, our -- our 23 deadline for this project. But that's a Texas Election 24 Code thing, you know, concept based on the scheduling 25 and calendaring of primary elections. But your plan 35 1 approved for Commissioner precincts won't go into effect 2 until January the 1st, 2022. 3 I recommend approval of those orders. 4 JUDGE KELLY: Okay. 5 COMMISSIONER HARRIS: With that, I'll move 6 to approve the -- 7 MR. SORENSEN: Judge -- 8 COMMISSIONER HARRIS: -- order adopting -- 9 MR. SORENSEN: -- sorry. I -- I do have one 10 question that I -- I think I'd like -- I'm trying to 11 imagine what this record is going to look like five 12 years down the road. And as far as the guidelines go, 13 earlier in the hearing I heard there was going to be a 14 dynamic drawer that would have census information and 15 voting age population, things like that. And I was 16 wondering if Mr. Kimbrough could speak as to why we 17 wouldn't require folks who wanted to submit a plan to 18 also have that information as it would be easy for us to 19 just dynamically draw that at the hearing itself. 20 MR. KIMBROUGH: Yes, sir. And it -- it is 21 on -- it's the guidelines order, bottom of page one, top 22 of page two, action item 4. If you don't have it, 23 here, I'll give you mine. 24 And you're right, counsel. If they submit 25 it, we need -- we need to see the -- the population 36 1 breakdowns, the voting age population -- 2 JUDGE KELLY: So we will be able to see 3 whatever they submit if -- if we have a third party 4 submission -- 5 MR. KIMBROUGH: Correct. 6 JUDGE KELLY: -- we'll be able to see how 7 that affects live on the screen next Thursday? 8 MR. KIMBROUGH: Yes, sir. 9 JUDGE KELLY: So whatever the proposal -- 10 MR. KIMBROUGH: A week from Thursday. 11 JUDGE KELLY: A week from Thursday. 12 MR. KIMBROUGH: A week from Thursday. 13 Tomorrow is this Thursday. And a week from tomorrow. 14 JUDGE KELLY: Yes. 15 MR. KIMBROUGH: 20 -- excuse me. The 14th. 16 Okay. The 14th. October the 14th, isn't it? 17 JUDGE KELLY: Uh-huh. 18 MR. KIMBROUGH: Okay. 19 MR. SORENSEN: All right. So that -- that 20 was my question. That last sentence says, The 21 Commissioners' Court may not have sufficient information 22 to give it full consideration. 23 MR. KIMBROUGH: Well, whatever's submitted, 24 I will promise you they'll do their dead level best to 25 figure it out. But if that fancy analysis like we've 37 1 done can be provided, it's -- it's a really helpful 2 tool. Half of practicing law is understanding what your 3 client wants and them understanding what you're doing, 4 you know. And that's this. 5 If the public presents a document, you need 6 to understand what they're trying to tell you. And this 7 line moving and drawing is a statistical exercise with 8 arithmetic and numbers and maps. 9 MR. SORENSEN: Absolutely. I'm just trying 10 to get a prophylactic five years down the road, a 11 litigant says I had this great plan and they denied it 12 because I didn't have voting information. And if 13 they're looking at our records and they see that all it 14 took was for somebody to draw a line at the hearing, why 15 did we deny that plan. So it's -- is there an 16 underlying reason why that's insufficient information 17 for us to analyze it consistently with the Voting Rights 18 Act? 19 MR. KIMBROUGH: You're right. It might -- 20 it might be a good argument to make. But I can't 21 determine whether it's a winner or not. I don't know 22 about that. I will tell you this -- 23 JUDGE KELLY: What I want the public to 24 understand is that we're going to do this publicly. 25 We've got -- we've got your proposals here. We've got 38 1 the proposal that we may come up with here on the Court 2 and we're open to any proposals that the public brings 3 us. It's all going to be done live. You'll be able to 4 see it. There will be a complete record of everything 5 that we do. 6 MR. KIMBROUGH: Well, and the tool that he's 7 discussing will be available to the public or us. I 8 mean that's the main issue. 9 JUDGE KELLY: Right. Everybody's access is 10 full. 11 COMMISSIONER BELEW: But the -- just drawing 12 the line thing has to stand the test of the Voting 13 Rights Act. So it's subject to an analysis based on 14 minority population. 15 MR. SORENSEN: Absolutely. What -- I guess 16 I'm just trying to protect the record that somebody can 17 look and see that it's something we talked about and 18 that we're not just denying somebody at the gate, 19 because they didn't have information that we already had 20 and that -- 21 COMMISSIONER BELEW: Oh, okay. 22 MR. SORENSEN: -- they could put up on the 23 screen and it wouldn't be a -- as narrowly tailored is 24 not a fun standard to have to litigate. 25 JUDGE KELLY: So let's get back to the 39 1 motion. What was your motion? 2 COMMISSIONER HARRIS: I don't remember. 3 JUDGE KELLY: We need to adopt the criteria 4 and then we need to adopt the guidelines. Probably in 5 separate motions. 6 COMMISSIONER HARRIS: Okay. Well, I move 7 that we adopt the criteria for use in the 2021 8 redistricting process as laid out by Mr. Kimbrough. 9 COMMISSIONER GIPSON: Second. 10 JUDGE KELLY: Okay. Motion's been made by 11 Commissioner Harris, seconded by Commissioner Gipson to 12 adopt the order -- to approve the order adopting 13 criteria for use in 2021 redistricting process. Any 14 discussion? 15 COMMISSIONER BELEW: It would be illegal to 16 do it another way, wouldn't it? 17 JUDGE KELLY: Well, this -- 18 COMMISSIONER BELEW: If we say we reject all 19 that, everything you explained, wouldn't we be in 20 violation of -- 21 MR. SORENSEN: Yes. 22 MR. KIMBROUGH: Some of it you would be. 23 Some of it's local practice. 24 COMMISSIONER BELEW: Okay. 25 JUDGE KELLY: This is belts and suspenders. 40 1 COMMISSIONER BELEW: Exactly. 2 JUDGE KELLY: We're getting it right. 3 MR. KIMBROUGH: Yeah. Certainly shows you 4 made an effort to determine what the law says and how to 5 follow it. 6 JUDGE KELLY: Those in favor raise your 7 hand. Unanimous, four zero. Another motion? 8 COMMISSIONER HARRIS: Yes. I move that we 9 adopt the guidelines as laid out by Mr. Kimbrough. 10 COMMISSIONER GIPSON: Second. 11 JUDGE KELLY: Motion's been made by 12 Commissioner Harris, seconded by Commissioner Gipson to 13 approve the order adopting guidelines for the person 14 submitting specific redistricting proposals and 15 providing comments. Any discussion? Those in favor 16 raise your hand. Unanimous, four zero. 17 And that is the -- that's the conclusion of 18 the public part of the meeting? 19 MR. KIMBROUGH: Yes, sir. 20 JUDGE KELLY: So at this point we're going 21 to have a brief recess and give people a chance to go to 22 the restroom, and come back at about five minutes after 23 10:00 and we'll go into Executive Session. We need a 24 motion and a second? 25 MR. KIMBROUGH: You do. The phrasing that's 41 1 in the agenda says may, as needed, that typically 2 signifies motion, second, and a vote to go closed. 3 COMMISSIONER BELEW: I'll make the motion 4 for Executive Session. 5 COMMISSIONER GIPSON: Second. 6 JUDGE KELLY: Motion by Commissioner Belew, 7 seconded by Commissioner Gipson to go into Executive 8 Session. Those in favor raise your hand. We'll 9 reconvene in five minutes in Executive Session on advice 10 of counsel. 11 (Executive Session.) 12 JUDGE KELLY: The Court will come back to 13 order. It is 12:31, and we don't have any action to 14 take, but I do want to announce that there will be a 15 public meeting next Thursday at 9 o'clock, a workshop, 16 where we will be live with the law firm staff and be 17 able to try to put together these redistricting 18 precincts. 19 COMMISSIONER HARRIS: Thursday a week from 20 tomorrow, the 14th. 21 JUDGE KELLY: October 14th, 9 a.m. 22 With that, we stand adjourned. 23 * * * * * * 24 25 42 1 STATE OF TEXAS * 2 COUNTY OF KERR * 3 I, DEBRA ELLEN GIFFORD, Certified Shorthand 4 Reporter in and for the State of Texas, and Official 5 Court Reporter in and for Kerr County, do hereby certify 6 that the above and foregoing pages contain and comprise 7 a true and correct transcription of the proceedings had 8 in the above-entitled Special Commissioners' Court. 9 Dated this the 29th day of October, A.D. 10 2021. 11 12 /s/DEBRA ELLEN GIFFORD Certified Shorthand Reporter 13 No. 953 Expiration Date 04/30/2023 14 * * * * * * 15 16 17 18 19 20 21 22 23 24 25