Motion to Dismiss or Affirm — Greg Abbott, Governor of Texas, et al., Appellants v. Shannon Perez, et al.

Supreme Court briefNov 20, 2017

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No. 17-586

IN THE

Supreme Court of the United States

————

GREG ABBOTT, in his official capacity as

Governor of Texas, et al.,

Appellants,

SHANNON PEREZ, et al.,

Appellees.

————

On Appeal from the United States District Court

for the Western District of Texas

————

MOTION TO DISMISS OR AFFIRM

————

JOSÉ GARZA

MARTIN GOLANDO

GARZA GOLANDO

MORAN, PLLC

115 E Travis St., Ste. 1235

San Antonio, TX 78205

Counsel for Appellee

Mexican American

Legislative Caucus, Texas

House of Representatives

DAVID RICHARDS

RICHARDS, RODRIGUEZ &

SKEITH, LLP

816 Congress Ave., Ste. 1200

Austin, TX 78701

Counsel for Appellees

Shannon Perez, et al.

RENEA HICKS

Counsel of Record

LAW OFFICE OF

MAX RENEA HICKS

P.O. Box 303187

Austin, TX 78703

(512) 480-8231

rhicks@renea-hicks.com

MARC E. ELIAS

BRUCE V. SPIVA

ARIA C. BRANCH

PERKINS COIE LLP

700 13th St. NW, Ste. 600

Washington, DC 20005

ABHA KHANNA

PERKINS COIE LLP

1201 Third Ave., Ste. 4800

Seattle, WA 98101

Counsel for Appellees

Eddie Rodriguez, et al.

Additional Counsel Listed on Inside Cover

November 20, 2017

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

ANITA S. EARLS

ALLISON J. RIGGS

SOUTHERN COALITION FOR

SOCIAL JUSTICE

1415 West Highway 54

Ste. 101

Durham, NC 27707

ROBERT NOTZON

LAW OFFICE OF

ROBERT S. NOTZON

1507 Nueces St.

Austin, TX 78701

VICTOR L. GOODE

NAACP

4805 Mt. Hope Dr.

Baltimore, MD 21215

Counsel for Appellees the

Texas State Conference of

NAACP Branches, et al.

LUIS R. VERA, JR.

LAW OFFICES OF LUIS

ROBERTO VERA, JR.

1325 Riverview Towers

111 Soledad

San Antonio, TX 78205

Counsel for Appellees

LULAC, et al.

GARY L. BLEDSOE

POTTER BLEDSOE, LLP

316 West 12th St.

Ste. 307

Austin, TX 78701

Counsel for Appellees

Congressmembers Eddie

Bernice Johnson, Sheila

Jackson Lee and Al Green

and NAACP Intervenor

Howard Jefferson

J. GERALD HEBERT

J. GERALD HEBERT, P.C.

191 Somervelle St., No 405

Alexandria, VA 22304

MARK P. GABER

439 Elm St. NW

Washington, DC 20001

JESSICA RING AMUNSON

JENNER & BLOCK LLP

1099 New York Ave. NW

Ste. 900

Washington, DC 20001

GERALD H. GOLDSTEIN

GOLDSTEIN, GOLDSTEIN,

& HILLEY

310 S. St. Mary’s St.

San Antonio, TX 78205

DONALD H. FLANARY, III

FLANARY LAW FIRM

1005 South Alamo

San Antonio, TX 78210

JESSE GAINES

P.O. Box 50093

Fort Worth, TX 76105

Counsel for Appellees

Margarita Quesada,

et al.

ROLANDO L. RIOS

LAW OFFICES OF

ROLANDO L. RIOS

115 E. Travis St., Ste. 1645

San Antonio, TX 78205

Counsel for Appellee

Congressman Henry

Cuellar

JOAQUIN G. AVILA

P.O. Box 33687

Seattle, WA 98133

Counsel for Appellee

Mexican American

Legislative Caucus

QUESTIONS PRESENTED

The district court found that two congressional

districts created by the Texas Legislature in 2011, and

subsequently retained by the legislature in 2013, are

legally infirm: District 35, as an unconstitutional

racial gerrymander; and District 27, as an intentional

and effective dilution of Latino voting rights under § 2

of the Voting Rights Act and the Fourteenth

Amendment. Texas appealed and obtained a stay

before the court-scheduled remedy hearing.

1. Does the Court have jurisdiction under 28 U.S.C.

§ 1253 to hear the State’s appeal prior to entry of

injunctive relief?

2. Did the district court commit clear error in carefully considering the substantial factual record of

racial predominance in the drawing of District 35,

or in concluding no narrowly tailored or compelling

justification supported such racial predominance?

3. Did the district court properly find that District 27

violates the Fourteenth Amendment and § 2 of the

Voting Rights Act by diluting Latino voting rights?

(i)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............................

TABLE OF AUTHORITIES ................................

MOTION TO DISMISS OR AFFIRM .................

OPINIONS BELOW ............................................

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ..............................

STATEMENT OF THE CASE ............................

ARGUMENT ........................................................

I. THE COURT DOES NOT HAVE

JURISDICTION OVER THE STATE’S

APPEAL UNDER 28 U.S.C. § 1253 .........

II. THE DISTRICT COURT’S PRELIMINARY RULING DOES NOT CLOAK

THE STATE WITH LEGAL IMMUNITY

FOR 2011 ACTIONS REPEATED IN ITS

2013 LEGISLATION ................................

III. THE DISTRICT COURT’S FINDING OF

INTENTIONAL DISCRIMINATION IS

NOT ERRONEOUS ..................................

IV. REGARDLESS OF DISCRIMINATORY

INTENT, DISTRICTS 27 AND 35 ARE

UNLAWFUL .............................................

A. District 35 Remains a Racial Gerrymander .................................................

B. CD27 Violates the § 2 Results Test ....

CONCLUSION ....................................................

SUPPLEMENTAL APPENDIX: United States

District Court for the Western District of Texas,

Fact Findings - General and Plan C185, March

10, 2017 ................................................................

(iii)

TABLE OF AUTHORITIES

CASES

Page(s)

Ala. Legislative Black Caucus v. Alabama,

135 S. Ct. 1257 (2015) ............................... 27, 30

Anderson v. Bessemer City,

470 U.S. 564 (1985) ...................................

Bartlett v. Strickland,

556 U.S. 1 (2009) .......................................

Bd. of Regents of the Univ. of Texas Sys. v.

New Left Educ. Project,

404 U.S. 541 (1972) ...................................

Bush v. Vera,

517 U.S. 952 (1996) ................................... 4, 28

Carson v. American Brands, Inc.,

450 U.S. 79 (1981) ............................... 17, 18, 19

City of Mesquite v. Aladdin’s Castle, Inc.,

455 U.S. 283 (1982) ...................................

Cooper v. Harris,

137 S. Ct. 1455 (2017) ......................... 25, 27, 29

Covington v. North Carolina,

316 F.R.D. 117 (M.D.N.C. 2016), aff’d

137 S. Ct. 2211 (2017). ............................

Dietz v. Bouldin,

136 S. Ct. 1885 (2016) ...............................

Goldstein v. Cox,

396 U.S. 471 (1970) ................................... 16, 17

Gunn v. University Committee to

End the War in Viet Nam,

399 U.S. 383 (1970) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

Hassett v. Welch,

303 U.S. 303 (1938) ...................................

Hunter v. Underwood,

471 U.S. 222 (1985) ................................... 21, 22

LULAC v. Perry,

548 U.S. 399 (2006) ..................................passim

LULAC v. Perry,

No. 2:03-cv-354, 2006 WL 3069542

(E.D. Tex. Aug. 4, 2006) ............................

Miller v. Johnson,

515 U.S. 900 (1995) ................................... 28, 29

North Carolina v. Covington,

137 S. Ct. 1624 (2017) ...............................

Perez v. Abbott,

No. SA-11-cv-360, 2017 WL 1787454

(W.D. Tex. May 2, 2017) ...........................

Perry v. Perez,

565 U.S. 388 (2012) ............................... 9, 10, 11

Purcell v. Gonzalez,

549 U.S. 1 (2006) .......................................

Riley v. Kennedy,

553 U.S. 406 (2008) ...................................

Rogers v. Lodge,

458 U.S. 613 (1982) ...................................

Shaw v. Reno,

509 U.S. 630 (1993) ................................... 27, 28

TABLE OF AUTHORITIES—Continued

Page(s)

Texas v. United States,

887 F. Supp. 2d 133 (D.D.C. 2012),

vacated on other grounds, 133 S. Ct.

2885 (2013) ................................................ 11, 12

Thornburg v. Gingles,

478 U.S. 30 (1986) ....................................passim

Trump v. Int’l Refugee Assistance Project,

137 S. Ct. 2080 (2017)................................

Univ. of Texas v. Camenisch,

451 U.S. 390 (1981) ...................................

Vera v. Bush,

933 F. Supp. 1341 (S.D. Tex. 1996) ............

Walters v. Nat’l Ass’n of Radiation

Survivors, 473 U.S. 305 (1985) .................

CONSTITUTION

U.S. Const. amend. XIV ..............................passim

STATUTES

28 U.S.C. § 1253 ..........................................passim

28 U.S.C. § 1291 ...........................................

28 U.S.C. § 1292(a)(1)............................. 17, 18, 19

Voting Rights Act of 1965, 52 U.S.C.

§ 10101 et seq. ..........................................passim

Act of June 20, 2011, 82nd Leg., 1st C.S.

ch. 1, 2011 Tex. Gen. Laws 5091-5180 ..... 5, 22

Act of June 21, 2013, 83rd Leg., 1st C.S.,

ch. 3, 2013 Tex. Gen. Laws 5005-5006 .....

vii

TABLE OF AUTHORITIES—Continued

RULES

Page(s)

Sup. Ct. R. 14.1(f) .........................................

OTHER AUTHORITIES

1 J.G. Sutherland, Statutes and Statutory

Construction (2d ed. 1908) .......................

16 Wright & Miller, Federal Practice and

Procedure (3d ed. 2012) ............................

MOTION TO DISMISS OR AFFIRM

The core of this case is not what the district court

did in 2012 or whether Texas merely followed orders.

The 2012 interim ruling on its face was preliminary,

and Texas willfully disregarded the court’s plain

words. At the core of this case, instead, are the districtspecific rulings in the appealed order.

Of the thirty-six congressional districts in Texas’s

Plan C235, the district court invalidated only two:

District 27 (with Nueces County at its southern end)

and District 35 (with Travis County at its northern

end). The court found that District 35 is racially

gerrymandered and that District 27 intentionally and

in effect dilutes Latino voting rights in violation of the

Fourteenth Amendment and § 2 of the Voting Rights

Act (“VRA”).

The crux of the ruling was that the Texas Legislature

had made an illegal trade of the very sort invalidated

in League of United Latin American Citizens v. Perry,

548 U.S. 399 (2006).1 Racially polarized voting is

significant in Nueces County but insignificant in

Travis County. Disregarding this crucial difference, the State used race as a tool to gain political

advantage and minimize Latino voting strength

throughout the region. To protect an incumbent preferred by Anglo voters but not Latinos, Texas traded

away the § 2 rights of Nueces County Latinos,

stranding them in a new Anglo-dominated District 27.

It then used race to create a majority-minority district

(District 35) that included 150,000 Travis County

Jurisdictional Statement Appendix (“App”) 112a. “[T]he

State’s creation of an opportunity district for those without a § 2

right offers no excuse for its failure to provide an opportunity district for those with a § 2 right.” App. 181a, quoting 548 U.S. at 430.

Latinos—Latinos without § 2 rights because voting in

Travis County is not racially polarized. Despite the

absence of this critical Gingles factor, the legislature

claimed District 35 satisfied its obligation to create a

new § 2 district in light of minority population growth.

This approach allowed the legislature to achieve a

twofer political goal: eliminating the Austin-based

crossover district and protecting the Anglo-preferred

incumbent in Nueces County. But it required sacrificing the § 2 rights of Nueces County Latinos.

The configurations of Districts 27 and 35 were

established in 2011, in Plan C185—and have remained

unaltered since. Contrary to the State’s position, the

district court’s 2012 interim plan incorporating the

2011-drawn districts does not immunize them and

their origins from judicial review. Districts 27 and

35 are legislative creations of the State that have

remained constant. When the Texas Legislature

embarked on the congressional redistricting task in

2011, it meticulously assigned populations to these

districts—census block by census block—in a statute

necessitated by the explosive growth of Texas’s minority

population and the resulting post-census apportionment of four new congressional seats. Exactly half of

Texas’s thirty-six congressional districts, including

Districts 27 and 35, were created in their current form

by the 2011 statute. Neither the 2012 interim map nor

the 2013 legislative ratification affected them.2 Far

from being “defunct” and “never-employed,” J.S. 2, the

2011 congressional redistricting statute has governed

Ten of the thirty-six districts, including District 35, have the

same census block assignments in the 2012 interim plan and the

2011 State-enacted plan. Another eight, including District 27,

have the same assignment of populated census blocks in 2011 and

2012. Stips. 7-8, June 28, 2017 (ECF No. 1442).

half of the state in every congressional election since

its adoption—including the two districts at issue here.

Texas’s main argument relies on a mischaracterization of the substantive and procedural origins of the

districts under review. The district court’s adoption of

the interim plan for the 2012 congressional elections

was more judicial acquiescence than judicial order.

The State itself worked behind the scenes to craft

the compromise deal and then helped orchestrate its

presentation to the court for adoption—leaving

Districts 27 and 35 exactly as created in 2011.

The 2012 interim order was not a get-out-of-jail-free

card for the State. The district court forewarned that

the plan was not a final adjudication of the merits of

the plaintiffs’ claims, repeatedly cautioning that the

State could not, and should not, treat the interim plan

as the definitive word on disputed issues. This ruling

was not judicial absolution to the State for legal sins

buried in the plan. From the moment the court

published Plan C235, Texas knew that unearthing

those legal sins awaited a full trial. Two full trials

later, Texas’s plan has been found wanting in two

districts—a result the district court warned was possible specifically with respect to Districts 27 and 35.

While Texas takes umbrage at the district court’s

examination of the State’s discriminatory intent in

drawing district lines in 2011, the court’s order does

not hinge on its intent finding. Rather, Districts 27

and 35 remain invalid regardless of the State’s

intentional violation of the constitutional and statutory

rights of Latino voters—the former as a discriminatory result in violation of § 2 and the latter as a racial

gerrymander in violation of the Equal Protection

Clause. Texas’s failure to confront—let alone dispute—

the district court’s detailed factual findings with

respect to these infirmities is fatal to its appeal.

The Court’s jurisdiction over Texas’s appeal at

this stage is doubtful. But, if the Court exercises

jurisdiction, it should summarily affirm the district

court’s declaration that Texas has violated the

Constitution and the VRA in its configuration of

Districts 27 and 35, then remand to the district court

in time for implementation of a remedy for the 2018

election cycle.3

OPINIONS BELOW

Appellants acknowledge that the district court’s

Order on Plan C235 “incorporated the district court’s

prior findings of fact and order on the 2011 map,” J.S.

3. Their appendix includes the district court’s Order

on Plan C185, Perez v. Abbott, 2017 WL 1787454 (May

2, 2017), see App. C, but omits the 742 Findings of Fact

accompanying it. These findings are included in

Appellees’ Supplemental Appendix (“Supp.App.”).

Texas redistricting rulings followed this pattern in 1996 and

2006. This Court’s rulings in the middle of an election year were

followed soon after by district court remedial orders issued in

time for that year’s elections. See LULAC v. Perry, 548 U.S. 399

(invalidating districts); LULAC v. Perry, 2006 WL 3069542 (E.D.

Tex. Aug. 4, 2006) (remedy); Bush v. Vera, 517 U.S. 952 (1996)

(invalidating districts); Vera v. Bush, 933 F. Supp. 1341 (S.D. Tex.

1996) (remedy).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

Omitted from the jurisdictional statement are texts,

linked below,4 of two “statutes . . . involved in the case”

under Supreme Court Rule 14.1(f): Texas’s 2011 and

2013 congressional redistricting statutes. See Act of

June 20, 2011, 82nd Leg., 1st C.S. ch. 1, 2011 Tex. Gen.

Laws 5091-5180, and Act of June 21, 2013, 83rd Leg.,

1st C.S., ch. 3, 2013 Tex. Gen. Laws 5005-5006.

STATEMENT OF THE CASE

A. An essential precondition for a viable claim

under § 2 of the VRA is a pattern of racial bloc voting.

See generally Thornburg v. Gingles, 478 U.S. 30

(1986). It is undisputed that as a general rule voting

in Texas is “strongly racially polarized.” App. 151a,

273a. But racial bloc voting patterns are not uniform.

They differ from county to county. This is especially

evident for the two districts (27 and 35) and counties

(Nueces and Travis) at the center of the State’s appeal.

In Nueces County, voting is racially polarized, significantly so. Id. 111a-112a, 183a-184a. Not so in Travis

County, the one place in Texas where legally

significant racially polarized voting is not present.

Supp.App. 308a, 340a, 470a (FF374, 424, 694); App.

110a, 175a, 181a. Anglos vote cohesively in every county

in the state except Travis. Supp.App. 475a (FF707).

B. The 2010 census reported that Texas’s population had increased by 4.2 million over the past decade.

Supp.App. 457a (FF666). Minorities accounted for

2011: http://www.capitol.state.tx.us/tlodocs/821/billtext/pdf/

SB00004F.pdf#navpanes=0.

2013: http://www.capitol.state.tx.us/tlodocs/831/billtext/pdf/SB

00004F.pdf#navpanes=0.

nearly 90% of the growth, 65% of it Latino. Id. Citizen

voting age population (“CVAP”) also grew significantly, while the Anglo CVAP share declined. Id.

459a-460a (FF671-672). Because of the growth, Texas

gained four new congressional seats, increasing its

delegation to 36 seats. Id. 34a (FF62).

C. In 2011, race was at the center of the Texas

Legislature’s redistricting work. The Republicancontrolled legislature equated minority opportunity

districts under § 2 with Democratic districts, Supp.App.

438a (FF623), was “hostile to the creation of any

minority districts,” and was willing to provide minority opportunities “only if they felt it was required by

the VRA,” id. 476a (FF710). The increase in districts

was due to minority population growth, but the

legislature decided to draw three new Anglo-controlled

districts and only one new minority opportunity district. App. 326a; Supp.App. 439a (FF624).

The legislative process itself was contentious. Minority

lawmakers were excluded from the redistricting process.

Supp.App. 193a (FF187(B)). Their substantive amendments were tabled, while even the most minor changes

requested for Anglo congressional incumbents were

adopted. Id. 195a-197a (FF187(C)-(E)). “[N]umerous

proposals . . . included a minority district in [DallasFort Worth (DFW)],” but were rejected because

mapdrawers considered it a “Democrat district.” Id.

286a (FF330).

D. The statewide congressional map drawn in

2011 evidenced across-the-board efforts to minimize

minority voting strength. In West Texas, mapdrawers

focused yet again on micro-designing District 23,

invalidated in LULAC v. Perry, to undermine the

ability of Latino voters to elect their candidates of

choice. App. 144a-146a (discussing use of “nudge

factor”). In the DFW region, the minority population

was manipulated to “decrease current and future

minority voting strength,” and district lines “pulled

strangely-shaped minority population areas out of

certain districts in order to submerge them in larger

Anglo populations and to reduce minority voting

strength.” Id. 400a. Mapdrawers drew these contorted

districts using racial data. Id. 286a.

While the mapdrawers understood that the VRA

compelled them to raise the number of Latinoopportunity districts from six to seven by adding one

in the South and West Texas envelope,5 id. 127a;

Supp.App. 229a (FF225), they were unwilling to risk

the incumbencies of two non-Latino preferred candidates, Canseco and Farenthold, App. 148a, 191a, who

had unexpectedly won the 2010 election in Latinoopportunity districts in the envelope. Supp.App. 25a26a (FF51, 52), 291a (FF341), 344a (FF435). Canseco

and Farenthold were not expected to win again in

their districts, which, if unaltered, would remain

Latino-opportunity districts. App. 144a; Supp.App.

299a (FF356). So the mapdrawers devised a strategy

to protect the new Anglo-preferred incumbents in

existing Districts 23 and 27 while simultaneously

adding a new Latino-opportunity district. App. 112a.

In District 23, the mapdrawers painstakingly

identified precincts with high Latino presence and

low Latino turnout, and then artfully manipulated

district lines to increase HCVAP percentage while

The “envelope” is “the large triangular area contained by a

line starting in Nueces County, running south to Cameron

County, then along the Rio Grande River to El Paso County, then

from El Paso County to Bexar County, then northeast to the

Hays/Travis County line, and back to Nueces County.” Supp.App.

294a (FF354).

excluding high turnout Latino precincts from the

district. App. 106a, 145a; Supp.App. 391a (FF518).

They then classified it as a Latino-opportunity district,

even though it was specifically drawn to ensure that

the Latino-preferred candidate would not win. App.

146a (“facade” of an opportunity district).

In District 27, such machinations would be insufficient to protect the Anglo-preferred incumbent. To be

re-elected, he had to be switched to a district of clear

Anglo dominance. Since this would eliminate a

Latino-opportunity district rather than add one, the

mapdrawers decided they needed to make a trade.

First, they “almost completely reconfigured” District

27 from its historic southern orientation to a northwestern one. Supp.App. 293a (FF345). This converted

District 27 into an Anglo-dominated district that

left the more than 200,000 Nueces County Latinos

stranded without an effective voice in congressional

elections. App. 110a; Supp.App. 155a-156a, 294a (FF169,

347). Next, after adding a compensatory South Texas

district (new District 34, south of Nueces) to keep from

losing a Latino-opportunity district in the envelope,

Supp.App. 156a (FF169), the mapdrawers had to look

elsewhere in the envelope to add a district so they

could claim compliance with the VRA. App. 114a.

Their solution was to turn to Travis County and

eliminate the existing crossover district anchored there

(benchmark District 25) in which minority voters,

with the help of crossover Anglo voters, were electing

their congressional candidate of choice. Supp.App.

340a (FF 425). To do this, the mapdrawers split “the

African American community in East Austin . . . ‘to

create a conduit to pick up the rest of the Hispanic

population in the northwest part of 35.’” App. 168a.

They then created a new Latino-opportunity district,

District 35, by roping in sizeable pockets of Latinos in

Travis County—where voting is not polarized—and

linking them along a long, narrow strip of interstate

highway with other pockets of heavily Latino population on the south side of Bexar County. Id. 171a-174a

& n.39 (“they used race as their tool”). They fractured

historic minority communities in Travis County

despite proposed alternatives that would have added

a new Latino-opportunity district without significant

divisions of Travis County. Supp.App. 329a-331a

(FF406-410).

E. With § 5 of the VRA still operative and Texas a

covered jurisdiction, Texas had to obtain preclearance

of Plan C185. In July 2011, it filed a preclearance suit

in the District of Columbia. Supp.App. 229a (FF225).

Plan C185 was simultaneously under challenge in

San Antonio—the court below—for infirmities alleged

under the Fourteenth Amendment and § 2 of the VRA.

Id. 148a (FF153).

These challenges were tried in September 2011, but

as the 2012 election cycle opened with no preclearance

ruling, the San Antonio court was forced to develop an

interim plan. In November 2011, the court ordered an

interim plan for the 2012 congressional elections.

Texas appealed, and this Court invalidated the plan in

Perry v. Perez, 565 U.S. 388 (2012), announcing a new

standard to govern imposition of an interim plan while

preclearance is pending. After Perry, in evaluating

challenges under the Constitution and § 2, the district

court had to adhere to state policies embodied in a

redistricting plan “except to the extent those legal

challenges are shown to have a likelihood of success on

the merits,” the standard applicable to preliminary

injunctions, id. at 394, or, with respect to § 5, except to

the extent there was a “not insubstantial” chance

aspects of the plan would fail to gain preclearance. Id.

at 394-95. This Court remanded for the district court

to apply this new standard.

F. The Court recognized the “exigencies caused by

the impending election,” Perry, 565 U.S. at 398, and by

the time of remand, Texas was already well into its

2012 election cycle. Circumstances compelled the

district court to act quickly to apply the Perry standards and get a new election schedule and interim

congressional plan in place. The court pressed the

parties to quickly work out a compromise on a new

interim map so elections could get underway. A subset

of plaintiffs negotiated a compromise with the State on

an interim map, and it was presented to the district

court less than a month after the Perry remand. App.

6a.6 The compromise’s principal changes were creation

of a new district in the DFW area and an increase in

District 23’s HCVAP. The compromise repaired only

such obvious, low-hanging fruit in the deeply flawed

plan as the District 26 “‘lightning bolt’ extending into

CD 12. Id. 400a.

No changes were made to Districts 27 and 35, even

though they were part and parcel of the 2011 map’s

minimization of minority voting strength.

The State itself acknowledged the map’s imperfections and limited purpose—admitting the plan is “far

from perfect”—but supported it anyway as “adequate

for [its] intended purpose” of allowing the 2012

elections to move forward. State Advisory at 4. It

Besides the State, the main proponents of the compromise

plan were the Texas Latino Redistricting Task Force plaintiff

group and Congressman Cuellar. Defendants’ Advisory Regarding Interim Redistricting Plans, Feb. 6, 2012 (ECF No. 605)

[“State Advisory”] at 3.

argued that “Texas voters are better served, in the

short term, by a reasonable resolution that allows

elections to go forward.” Id. at 20 (emphasis added).

Barely a month after Perry’s remand, over objections

from most plaintiffs, the court “accept[ed] the compromise plan,” modified it for purely technical reasons,

and issued Plan C235 as the interim plan for the 2012

elections. App. 368a. Districts 27 and 35 still were

exactly the same as the State drew them in 2011. Id.

113a.

The district court expressly warned the parties that

the “compromise plan” was by no means a definitive

resolution of the issues, telling them that Plan C235

was only interim, “not a final ruling on the merits of

any claims,” and reflects only “preliminary determinations” that “may be revised upon full analysis.”

Id. 367a-368a. In allowing District 35 to remain

unchanged “at this time,” id. 415a, the court reiterated

that whether it was a racial gerrymander was a “close

call,” id. 409a. The court was equally wary of its

preliminary ruling on District 27, noting that the § 2

challenges were “not without merit” and that its ruling

allowing District 27’s interim use was only effective “at

this time.” Id. 419a. In short, Texas was on notice that

the “preliminary” conclusions about Plan C235 were

not the court’s final word on Appellees’ constitutional

and § 2 claims, particularly with respect to Districts

27 and 35. Id. 6a (quoting 2012 interim order).

G. On August 28, 2012, the D.C. court issued final

judgment on preclearance of Plan C185, unanimously

concluding that “the plan was enacted with a discriminatory purpose.” Texas v. United States, 887 F. Supp.

2d 133, 159 (D.D.C. 2012), vacated on other grounds,

133 S. Ct. 2885 (2013). Pointedly, the court explained

that “[t]he parties have provided more evidence of

discriminatory intent than we have space, or need,

to address here,” id. at 161 n.32, and that it was

“persuaded by the totality of the evidence that the plan

was enacted with discriminatory intent,” id. at 161.7

The court further determined that Texas had violated

§ 5 by dismantling benchmark District 25, which,

anchored in Travis County, was home to a “tri-ethnic

crossover coalition” where minority voters had an

opportunity to elect their congressional candidate of

choice. Id. at 184, 190. Texas appealed.

H. With the preclearance appeal pending, the

Governor called a special legislative session for the

express purpose of repealing Plan C185 and adopting

Plan C235. Supp.App. 231a (FF231); App. 40a. As the

district court found, however, “[t]he Legislature did

not adopt the Court’s plans with the intent to adopt

legally compliant plans free from discriminatory taint,

but as part of a litigation strategy.” Id. That litigation

strategy was predicated on attempting to avoid the

same findings of discriminatory intent and VRA

liability in the San Antonio court that had already

been made by the D.C. court, and to claim a cloak

of protection from the district court’s preliminary

approval of the interim plan to insulate the State

from further liability. Id. 44a (State “attempting to

prevent . . . relief for purposeful racial discrimination”).

Such evidence included emails between mapdrawers identifying ways to create the appearance of a Latino-opportunity district

without having it actually perform that way, the troubling

removal of economic engines and district offices from districts

represented by African-American congresspersons, and the deliberate evisceration of performing crossover District 25. Id. at 15556, 160-61, 183-84.

The legislature’s own attorney publicly echoed the

district court’s earlier warnings and advised that the

legislature could not rely upon the district court’s 2012

interim plan order as proof the plan complied with the

VRA and Constitution. The district court, he said, had

been “in a little bit [of a] tricky [position] because [it]

had not made full determinations, . . . had not made

fact findings on every issue, had not thoroughly

analyzed all the evidence but they had to make

some best case guesses . . . .” App. 43a. “[W]illfully

ignor[ing] those who pointed out deficiencies,” id. 45a

n.46, including its own attorney, the legislature

ratified Plan C235 on June 24, 2013.

I. The district court subsequently conducted two

week-long trials, on Plan C185 in 2014, then on

Plan C235 in 2017. In both, the issues as to Districts

27 and 35 were the same, because the “exact same

configuration of CD35 and CD27 remains in Plan

C235” as in Plan C185. App. 113a. The district court’s

March 2017 ruling on Plan C185 established that

intentional discrimination infected the 2011 redistricting plan, describing the intentional fracturing of

communities of color and race-based line drawing

across the state. See, e.g., id. 289a (in the DFW area

“race was used as a proxy for political affiliation, and

that this was done intentionally to dilute minority

strength”).

The court’s August 2017 ruling on Plan C235

effectively upheld the interim map’s compromise

changes to District 23 and the DFW-area districts,

rejecting further § 2 challenges there. But the court

found differently for Districts 27 and 35, recognizing

that they were integral elements of the overall

discriminatory strategy employed in the 2011 plan

that the district court had not had time to identify

upon preliminary review. In the appealed ruling, the

district court sustained the challenges lodged since the

case’s beginning in 2011, summarizing the linkage of

the two districts:

Including all or most of the population of

Nueces County in a southern district and in

“the envelope” increases the Hispanic population available in the envelope to draw Latino

opportunity districts, and makes it easier

to draw HCVAP-majority districts CD20,

CD23, and CD35. Including the population of

Nueces County in the envelope makes it

easier to draw seven Latino opportunity districts under § 2 without including Travis

County.

Supp.App. 300a (FF359). In finding that the legislature’s “offset” Latino-opportunity district, District 35,

was an unconstitutional racial gerrymander, the court

found that District 35’s location “was not to address

§ 2 concerns, but to intentionally destroy an existing

district [benchmark District 25] with significant

minority population.” App. 110a.

The court struck down District 35 as a racial

gerrymander in both plans. See App. 115a (“Although

Plan C235 was enacted in 2013, the decision as to

which voters to include within CD35 was made in

2011, and that remains the proper time for evaluating

the district.”). The court found that the core black

community in Austin was divided from historical

communities of interest and “effectively neutered” by

grouping it with a distant metropolitan area with

which it did not share interests. Supp.App. 335a

(FF414). It concluded that “race subordinated other

redistricting principles” in Travis County, id. 339a,

342a (FF421, 428), where minority populations were

“fractured” and Latino voters carved out for inclusion

in a new majority-minority district without any VRA

justification because Anglo bloc voting in opposition to

minority voter preferences is absent, id. 334a, 340a

(FF413, 424).

As to District 27, the court found that it had been

converted from a Latino-opportunity district into one

where “Latino voters have no opportunity to elect their

preferred candidates.” App. 190a. The effect was to

dilute the voting strength of the more than 200,000

Nueces County Latinos stranded in the district. Id.

191a. And the choice was purposeful, made “to protect

an incumbent who was not the candidate of choice of

those Latino voters.” Id. After the Plan C235 trial, the

court found that this discriminatory intent “carr[ied]

over” to the 2013 adoption of identical district lines,

“purposefully . . . depriv[ing] plaintiffs of any remedy.”

Id. 46a, 116a.

ARGUMENT

I. THE COURT DOES NOT HAVE JURISDICTION OVER THE STATE’S APPEAL

UNDER 28 U.S.C. § 1253.

This Court has no jurisdiction to entertain Texas’s

premature appeal because the district court has not

ordered injunctive relief. Under 28 U.S.C. § 1253,

appeals to this Court from three-judge district courts

may only occur “from an order granting or denying . . .

an interlocutory or permanent injunction.” There has

been no such injunction here, as made clear in both the

order on appeal, see App. 119a, and the court’s subsequent order denying Texas’s motion for stay pending

appeal, see Text Order, Aug. 18, 2017) (ECF No. 1538).

“This Court has more than once stated that its

jurisdiction under the Three-Judge Court Act is to be

narrowly construed since any loose construction of the

requirements of (the Act) would defeat the purposes of

Congress to keep within narrow confines our appellate

docket.” Goldstein v. Cox, 396 U.S. 471, 478 (1970)

(citation and internal quotation marks omitted); see

also Bd. of Regents of the Univ. of Texas Sys. v.

New Left Educ. Project, 404 U.S. 541, 545 (1972)

(reiterating that § 1253 “is to be strictly construed”).

“That canon of construction must be applied with

redoubled vigor when,” as here, “the action sought to

be reviewed . . . is an interlocutory order of a trial

court. In the absence of clear and explicit authorization from Congress, piece-meal appellate review is

not favored.” Goldstein, 396 U.S. at 478.

Indeed, this Court has specifically held that it lacks

jurisdiction where three-judge courts acknowledge a

party’s eventual entitlement to injunctive relief but

delay its entry. See Gunn v. University Committee to

End the War in Viet Nam, 399 U.S. 383, 390 (1970)

(“Because the District Court has issued neither an

injunction, nor an order granting or denying one, . . .

we have no power under § 1253 either to remand to the

court below or deal with the merits of this case in any

way at all.”) (internal quotation marks omitted).

Here, the district court declared that Texas’s

congressional plan violates § 2 of the VRA and the

Constitution, and indicated that those violations must

be remedied, while declining to enter an injunction.

App. 118a. As in Gunn, this Court has no power to

“deal with the merits of this case in any way at all”

until the district court enters an injunction. 399 U.S.

at 390. Recognizing a right to relief and granting relief

fall on opposite sides of § 1253’s jurisdictional divide.

Texas’s Jurisdictional Statement does not cite,

much less discuss, a single § 1253 opinion. Instead,

Texas seeks refuge in a different provision—28 U.S.C.

§ 1292(a)(1)—which governs appeals from grants or

denials of injunctive relief to circuit courts. Texas’s

only jurisdictional argument is that § 1253 should be

given the same interpretive gloss for finding the grant

of an injunction that Carson v. American Brands, Inc.,

450 U.S. 79 (1981), gave § 1292(a)(1) for finding the

denial of an injunction. Texas’s § 1292(a)(1)-based

argument fails on several fronts.

First, § 1292(a)(1) by its own terms does not apply

to instances where “direct review may be had in the

Supreme Court.” The strict construction rule applicable to the Court’s jurisdiction under § 1253 has

never applied to orders appealed to circuit courts

under § 1292(a)(1). While circuit courts’ sole function

is to entertain direct appeals, Congress intended

that the Supreme Court’s appellate docket must be

“narrow[ly] confine[d]” because of the Court’s other,

primary duties. Goldstein, 396 U.S. at 478. It makes

little sense, therefore, to extend Carson’s framework

to § 1253.

Second, even if Carson did apply to appeals pursuant to § 1253, its requirements are not satisfied. Texas

contends that the order below has the “practical effect”

of “preventing the State from conducting congressional elections under its duly enacted redistricting

plan” because it noted that the violations “must be

remedied,” ordered Texas’s counsel to provide notice of

whether the legislature will be called into session to

cure the violations (and, if so, when), and set a hearing

to consider remedial maps if the State declined the

legislative remedy option. J.S. 12-13. But setting a

hearing to determine when and how to remedy

violations falls squarely within the district court’s

“inherent authority to manage [its] dockets and

courtrooms with a view toward the efficient and

expedient resolution of cases.” Dietz v. Bouldin, 136 S.

Ct. 1885, 1892 (2016). Even a request for submission

of proposed remedial plans is not an appealable

injunction under § 1292(a)(1). See 16 Wright & Miller,

Federal Practice and Procedure § 3922.2 (3d ed. 2012)

(“orders that the parties prepare plans for injunctive

relief” ordinarily not appealable under § 1292(a)(1)).8

Texas’s suggestion, moreover, that a remedial

hearing is equivalent to an injunction ignores allimportant details about the nature, scope, and timing

of the remedy. Indeed, the question of when a remedy

should take effect is a point of recurring contention in

the remedy phase of election cases. See, e.g., North

Carolina v. Covington, 137 S. Ct. 1624 (2017); Purcell

v. Gonzalez, 549 U.S. 1, 5-6 (2006). Remedy proceedings precede remedy orders precisely to consider

these critical issues. As things stood after the August

order (and as they stand now after this Court’s stay),

the “practical effect” of the liability ruling is unknown

and unknowable.

Texas’s argument that the additional two Carson

requirements are satisfied likewise fails. The order

has “serious, perhaps irreparable, consequences,” Texas

says, “because it invalidates two congressional districts

and compels the State to redraw the congressional

map.” J.S. 14. The first point is nothing more than a

claim that § 1253 gives the Court jurisdiction over

appeals from liability rulings—a claim this Court has

These principles undoubtedly are the basis for the Court’s

reiteration of the limits of appellate jurisdiction under 28 U.S.C.

§§ 1291 and 1292(a)(1) in the voting rights context: “We have long

held that an order resolving liability without addressing a

plaintiff’s request for relief is not final.” Riley v. Kennedy, 553

U.S. 406, 409 (2008).

expressly rejected. The second point simply reflects

the truism that constitutional and statutory violations

require a remedy. That fact on its own—absent an

actual remedy—hardly satisfies Carson’s standard for

§ 1292(a)(1) jurisdiction.

Exercising jurisdiction over the State’s appeal

cannot be squared with the historical understanding

of § 1253’s limits. The Court should dismiss the appeal

as promptly as reasonably possible and allow the

district court to proceed to the remedial phase.

II. THE DISTRICT COURT’S PRELIMINARY

RULING DOES NOT CLOAK THE STATE

WITH LEGAL IMMUNITY FOR 2011

ACTIONS REPEATED IN ITS 2013

LEGISLATION.

The district court’s invalidation of Districts 27 and

35 in Plan C235 was based on extensive factual

findings regarding those same districts in Plan C185.

App. 14a n.13. Rather than dispute those findings,

Texas sidesteps them entirely, relying on a carefullystaged disappearing act. It argues that what the

legislature actually did—and intended to do—when it

drew those districts in 2011 is of no consequence

because of subsequent events in 2013. J.S. 15-25.

But the only action the legislature took in 2013

with respect to Districts 27 and 35 was to reaffirm

and ratify the illegal lines it drew two years earlier.

Texas’s defense is unprecedented, boiling down to

this putative rule: a legislature that successfully

masks its discriminatory motives during preliminary

injunction proceedings can forever preclude the court

from finding liability by simply repealing and

reenacting its law—shifting the responsibility for its

creation from the legislature to the court.

Ample authority shows the opposite to be true. The

Court only recently explained the characteristics of

preliminary rulings in terms contradicting Texas’s

argument:

Crafting a preliminary injunction is an

exercise of discretion and judgment, often

dependent as much on the equities of a given

case as the substance of the legal issues it

presents. The purpose of such interim equitable relief is not to conclusively determine the

rights of the parties, but to balance the

equities as the litigation moves forward.

Trump v. Int’l Refugee Assistance Project, 137 S. Ct.

2080, 2087 (2017) (emphasis added) (citations omitted).

This echoes decades of precedent establishing that a

preliminary injunction ruling has limited significance

for the ultimate disposition of a claim.

The purpose of a preliminary injunction is

merely to preserve the relative positions of

the parties until a trial on the merits can be

held. Given this limited purpose, and given

the haste that is often necessary if those

positions are to be preserved, a preliminary

injunction is customarily granted on the basis

of procedures that are less formal and

evidence that is less complete than in a trial

on the merits. A party thus is not required to

prove his case in full at a preliminary

injunction hearing, and the findings of fact

and conclusions of law made by a court

granting a preliminary injunction are not

binding at trial on the merits.

Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981)

(citations omitted); see also Walters v. Nat’l Ass’n of

Radiation Survivors, 473 U.S. 305, 317 (1985) (“any

conclusions reached at the preliminary injunction

stage are subject to revision”). Texas’s gambit of

claiming safe harbor in the district court’s preliminary

ruling “improperly equates ‘likelihood of success’ with

‘success,’ and . . . more important . . . ignores the

significant procedural differences between preliminary

and permanent injunctions.” Camenisch, 451 U.S. at

394.

Texas can hardly feign surprise that preliminary

court rulings cannot be used to estop constitutional

claims. Not only did the legislature’s own lawyer

caution against this shell-game strategy for hiding the

State’s unconstitutional conduct in 2013,9 but also the

district court expressly told Texas that its interim

ruling was “not a final ruling on the merits of any

claims asserted by the Plaintiffs in this case.” App.

367a. Texas’s boast that it simply “took the district

court at its word,” J.S. 11, is an empty one. The district

court’s “word” to Texas was that the interim plan

ruling contained only “preliminary determinations”

for one election cycle that “may be revised upon full

analysis.” App. 367a-368a. The State paid no heed.

Hunter v. Underwood, 471 U.S. 222 (1985), further

undercuts the State’s effort to make the 2011 creation

of Districts 27 and 35 disappear behind the 2013

legislative curtain. In Hunter, plaintiffs challenged

Texas makes the unsupported assertion that the 2013

legislature continued to use some Plan C185 districts “only

because” of the district court’s preliminary 2012 ruling that they

likely were not illegal. J.S. 18. The district court made no such

finding. Rather, it found that the 2013 ratification was a

litigation strategy, not deference to the court. App. 40a.

a 1901 Alabama constitutional provision as racially

discriminatory. Alabama argued that the amendment’s original invidiousness had been diluted over

subsequent decades to the point that it was no longer

intentionally discriminatory. Id. at 232-33. The Court

unequivocally rejected that argument and struck

down the law on equal protection grounds, explaining

that the provision’s “original enactment was motivated by a desire to discriminate against blacks on

account of race and . . . continues to this day to have

that effect.” Id.

This case is indistinguishable. At the beginning of

the decade, Texas enacted a redistricting plan riddled

with discriminatory intent. While judicial intervention

mitigated some of the discriminatory effect flowing

from that improper intent, acquiescing to that limited

and preliminary judicial intervention by enacting Plan

C235 does not erase the intent with which Districts 27

and 35 were enacted or do anything to correct how that

intent continued to produce the same effect in those

districts in 2013 and beyond.

Technical canons of statutory construction buttress

Hunter’s application. Districts 27 and 35 are, after all,

statutory provisions, originally included as Sections 27

and 35 in Article II of the State’s 2011 congressional

redistricting bill. Supra n.4. Plan C235’s ratification

in 2013 effectively re-adopted these original sections

of the 2011 legislation, embedding them in the

2013 statute. “Where there is . . . a repeal and a

re-enactment of a portion of [an existing statute], the

re-enactment neutralizes the repeal so far as the old

law continued in force. It operates without interruption where the re-enactment takes effect at the same

time.” 1 J.G. Sutherland, Statutes and Statutory

Construction § 238 (2d ed. 1908) (cited with approval,

Hassett v. Welch, 303 U.S. 303, 314 & n.17 (1938)).

Texas’s insinuation that the 2011 configurations of

Districts 27 and 35 “no longer existed” once they

became part of Plan C235, J.S. 27, is transparently

wrong. They have been used in Texas elections continuously since their adoption in 2011. A challenged statute does not become moot just because it is voluntarily

repealed (and reenacted, unchanged) in the middle of

a lawsuit. City of Mesquite v. Aladdin’s Castle, Inc.,

455 U.S. 283, 288-89 n.10 (1982). Here, the legislature

not only left open the possibility that it might re-enact

the 2011 redistricting statute, it effectively did

re-enact that statute with respect to Districts 27 and 35.

In short, the Court should not sanction Texas’s

gaming of the judicial process. When the legislature

decided to re-enact Districts 27 and 35 in 2013, aware

that they had only been approved under a preliminary

injunction standard, it assumed the risk that the

districts might not withstand full scrutiny.

III. THE DISTRICT COURT’S FINDING OF

INTENTIONAL DISCRIMINATION IS NOT

ERRONEOUS.

Unable to hide behind its 2013 ratification of

identical district lines, Texas’s argument against the

district court’s finding of intentional vote dilution in

District 27 all but evaporates.

Nueces County has 206,000 Latinos, 133,370 of

them eligible to vote. Supp.App. 294a (FF347). Voting

there is highly racially polarized. Id. 300a (FF358).

The district court found that Texas intentionally

diluted the voting rights of Nueces County Latinos

when it stranded all of them in reconfigured District

27 for the specific purpose of ensuring that they would

be in an Anglo-dominated district where they would

“have no opportunity to elect their preferred candidates.” App. 190a. The court meticulously worked

through the extensive trial evidence, Supp.App. 287a300a (FF335-359), to determine that the legislative

flip of District 27 from Latino-opportunity to Anglodominated meant that the more than 200,000 Latinos

in Nueces County “who had been in an opportunity

district were no longer in such a district.” Id. 299a300a (FF357). The court found that this was by

legislative design and happened not because the

legislature wanted these Latino voters to have

influence in District 27 or because their rights could

not be accommodated without sacrificing other

voters’ § 2 rights, but because they would not vote

for the newly elected Anglo Republican incumbent.

App. 111a. This, the court found, “intentionally

deprived [Nueces County Latino voters] of their

opportunity to elect a candidate of their choice.” Id.

116a. The 2013 ratification continued the violation,

“purposefully intending to deprive plaintiffs” of their §

2 rights. Id. In short, by leaving District 27 intact in

2013, the legislature ratified its previous purposeful

vote dilution on racial grounds.

The district court’s findings of intentional racial

discrimination in District 27 must be accepted unless

clearly erroneous. Rogers v. Lodge, 458 U.S. 613, 62223 (1982). All Texas offers is the assertion that the

district court reached its finding of purposeful

discrimination by doing nothing more than “infer[]”

intent from the “mere fact” that the legislature knew

it was moving District 27 out of the opportunity

district column. J.S. 30. But the court did much more

than that. It marched through the facts, demonstrating that the deliberate choice from the beginning was

to isolate Nueces County Latinos in a congressional

district where they had no meaningful electoral say—

all the while seeking cover in the intentional racial

carve-up of Travis County to help create District 35.10

Texas’s argument provides nothing to show how this

conclusion was erroneous, much less clearly so. See,

e.g., Cooper v. Harris, 137 S. Ct. 1455, 1465 (2017) (“A

finding that is ‘plausible’ in light of the full record—

even if another is equally or more so—must govern.”)

(quoting Anderson v. Bessemer City, 470 U.S. 564, 574

(1985)). This longstanding rule of deference is surely

applicable here, where the district court’s ultimate

conclusion of discriminatory intent came after it

heard weeks of testimony and made credibility determinations of multiple decisionmakers central to the

design of the challenged districts. See id. at 1478 (“A

choice to believe ‘one of two or more witnesses, each

of whom has told a coherent and facially plausible

story that is not contradicted by extrinsic evidence,’

can ‘virtually never be clear error.’”) (quoting Anderson,

The court found that District 35’s location “was not to

address § 2 concerns, but to intentionally destroy an existing

district with significant minority population.” App. 110a. The

dismantled crossover district, benchmark District 25, was

created by the district court in 2006 on remand from LULAC v.

Perry. Supp.App. 426a, 428a (FF 583, 593). Plaintiffs challenged

the destruction of benchmark District 25 based on the plurality

opinion in Bartlett v. Strickland, 556 U.S. 1 (2009), which warned

that redistricting lines purposefully drawn to “destroy otherwise

effective crossover districts” would raise serious Fourteenth

Amendment concerns. Id. at 24. Because it found that District 35

is a racial gerrymander, the court did not reach the Bartlett

intentional vote dilution claim. App. 110a-111a n.83. But the

intentional destruction of this crossover district was intertwined

with the District 35 racial gerrymander. Id. 172a n.38 (State used

District 35 to “justify its destruction” of benchmark District 25).

470 U.S. at 575). The finding of intentional vote

dilution as to District 27 should stand.

IV. REGARDLESS OF DISCRIMINATORY

INTENT, DISTRICTS 27 AND 35 ARE

UNLAWFUL.

While Texas challenges the notion that its 2011

intent in drawing Districts 27 and 35 bears on its 2013

reenactment of those identical districts, it admits that

“discriminatory effect may be carried over (whether

intentionally or unwittingly) from one version of a law

to another.” J.S. 17. This concession is damning given

the district court’s express finding that the “the

racially discriminatory intent and effects that it

previously found in the 2011 plan[] carry over into the

2013 plan[] where those district lines remain

unchanged.” App. 117a (emphasis added). Even were

the State’s discriminatory intent filtered out by the

adoption of a different bill number effectuating

identical district lines, Districts 35 and 27 are still

invalid based on the district court’s detailed findings

with respect to their ongoing discriminatory effects.

In the Plan C185 order, the district court determined that “Defendants’ decision to place Nueces

County Hispanic voters in an Anglo district [District

27] had the effect and was intended to dilute their

opportunity to elect their candidate of choice” in

violation of § 2 of the VRA. App. 194a (emphasis

added). It further found that District 35 is a racial

gerrymander in violation of the Equal Protection

Clause, as “Defendants’ decision to place majorityHCVAP CD35 in Travis County” was effectuated

through race-based means and not justified by a

compelling state interest. Id. As a result, “[t]he

configurations of . . . CD27[] and CD35 in Plan C185

are . . . invalid.” Id. 195a. Regardless of Texas’s

discriminatory intent in drawing these districts in

2011 or its continued embrace of them in 2013, those

“exact same configuration[s]” remain in place, id.

113a—and remain invalid—in Plan C235.

A. District

Gerrymander.

Remains

Racial

The district court found that race predominated over

traditional districting principles in “the drawing of

district lines and selection of district population” in

District 35 under Plan C185. App. 166a; Supp.App.

328a-329a (FF405). Those “district lines” remain

unchanged in Plan C235, and the same “district

population” suffers from the State’s unjustified racebased classification. App. 164a n.31 (“The harm flows

from being ‘personally . . . subjected to [a] racial

classification,’ not from vote dilution or intentional

discrimination.”) (quoting Ala. Legislative Black

Caucus v. Alabama, 135 S. Ct. 1257, 1265 (2015)). The

district court’s assessment of District 35 is owed

“significant deference.” Cooper, 137 S. Ct. at 1464.

The district court’s racial gerrymandering finding,

moreover, did not hinge on the State’s discriminatory

intent. The district court correctly noted that

“[d]iscriminatory purpose is not an element of a Shaw

type claim.” App. 37a n.36 (referring to Shaw v. Reno,

509 U.S. 630 (1993)). See Covington v. North Carolina,

316 F.R.D. 117, 124 n.1 (M.D.N.C. 2016) (“In reaching

this conclusion [that race predominated], we make no

finding that the General Assembly acted in bad faith

or with discriminatory intent in drawing the

challenged districts.”), aff’d 137 S. Ct. 2211 (2017).

That analysis comports with this Court’s articulation

of the racial predominance standard as one which

examines the use of race in the placement of voters in

various districts. Alabama, 135 S. Ct. at 1271 (“[T]he

‘predominance’ question concerns which voters the

legislature decides to choose, and specifically whether

the legislature predominantly uses race as opposed to

other, ‘traditional’ factors when doing so.”); see also

Miller v. Johnson, 515 U.S. 900, 916 (1995). It is the

race-based placement of voters without a strong basis

in evidence for doing so, rather than any intent to

discriminate through vote dilution, that defines a

Shaw claim.

The district court’s conclusion that race predominated in the drawing of District 35 rests on undisputed

evidence about the ways mapdrawers effectuated their

intent to destroy an existing crossover district by

creating a majority-Latino district snaking its way

through Travis County to capture Latino voters.

For instance, the district court highlighted several

egregious precinct splits, “including the Precinct 433

split to divide St. Edward’s University to place the

dorms (with large Hispanic student population) into

CD35, while placing the administration building in

CD21, and the Precinct 440 split to include an

arrowhead shape containing the Riverside apartments

(a more Hispanic population) within CD35.” App.

167a. Because only racial data, not political data, is

available below the precinct level, Supp.App. 486a

(FF732), this evidence establishes that race predominated over politics in drawing District 35. See Bush v.

Vera, 517 U.S. 952, 970-71 (1996) (highlighting “split[]

voter tabulation districts” in light of the fact that “the

districting software used by the State provided only

racial data at the block-by-block level” as “objective

evidence” of racial predominance). The district court

further found that the “squiggle” at the northern part

of District 35 grabbed population that is 90-100%

Latino. App. 167a. Indeed, “[t]he CD35 district

lines in Travis County do not match up with any

city boundaries, with House districts, or with any

recognizable communities of interest other than

race.” Id. 168a. The southern portion of the district,

moreover, consistently includes “areas with high

percentages of Hispanic residents and voters and

exclude[s] less Hispanic areas.” Id. 168a. The end

result of this race-based carving of voters from north

central Austin to south San Antonio is a district that

remains the least compact congressional district in the

state. Id. 110a n.83, 162a.11

These are objective, undisputed facts about the

placement of “a significant number of voters within or

without” District 35 under Plan C185, Miller, 515 U.S.

at 916, and the same placement of voters within and

without District 35 under Plan C235. Texas does not

even attempt an argument that race did not

predominate in the drawing of District 35 or that the

district court’s factual findings are clear error.

When, as here, race predominates, the burden shifts

to the State to demonstrate that the district’s

configuration was narrowly tailored to a compelling

government interest. Cooper, 137 S. Ct. at 1464. Texas

falls well short of its strict scrutiny burden here.

Texas’s principal substantive argument in defense

of District 35’s race-based configuration is that the

district court’s interim map did not alter it. J.S. 33-34.

But as set forth above, supra Part II, the district court

specifically warned the State not to rely on its

“preliminary determinations.” The abundant caveats

accompanying the interim plan provided Texas no

legal or factual basis, let alone a “strong basis in

While it did not reach the question, the district court

was “inclined to find that CD35 is not compact for § 2 purposes.”

App. 175a.

evidence,” Alabama, 135 S. Ct. at 1274, to believe that

§ 2 required District 35’s configuration.

Texas also seeks refuge in the district court’s

conclusion that § 2 required the creation of seven

Latino-opportunity districts in South/West Texas. But

just as in 2011, while the 2013 legislature “may have

had a strong basis in evidence for believing” this

undisputed fact, it “had no basis in evidence to believe

that the Gingles preconditions were satisfied in Travis

County such that a race-based majority-Hispanic

district should be drawn there.” App. 176a. As the

district court found—and Texas does not dispute—

“Travis County does not have Anglo bloc voting and

thus does not meet the third Gingles precondition,

which mapdrawers knew[.]” Id. 110a (emphasis

added). Like the district court, this Court should reject

Texas’ invitation to bless its drawing of any old racebased district in any old configuration in purported

service of § 2. While § 2 certainly mandates the

creation of at least seven majority-minority districts in

South/West Texas, Texas had no basis to believe—

either in 2011 or in 2013—that § 2 mandated the

creation of this particular version of District 35.

The district court was clear that “passage of time or

the re-enactment of a plan including the identical

district does not typically change any facts concerning

which voters were placed within or without the district

when it was drawn, unlike discriminatory intent,

which can change over time.” App. 38a n.36. The racebased placement of voters in District 35 has remained

since 2011, and those voters continue to suffer

constitutional injury with every ballot cast regardless

of Texas’s intent in the intervening years.

B. CD27 Violates the § 2 Results Test.

The district court expressly found that “the

Legislature violated § 2 in both result and intent” in its

configuration of District 27. App. 112a (emphasis

added). With respect to Plan C185, the court found

that “Plaintiffs demonstrated that approximately

200,000 Hispanic voters in Nueces County (a majorityHCVAP county) had a § 2 right that could be remedied

but was not.” Id. 181a. Those voters’ § 2 right did

not disappear by 2013. Those same Nueces County

Latinos still have a § 2 right unremedied by Plan

C235. Id. 117a. Thus, regardless of the motivation of

either the 2011 or 2013 legislatures, the discriminatory impact on Latino voters in Nueces County who

have been unlawfully deprived of the equal opportunity to elect their candidates of choice is still present

in District 27.

Texas argues that the district court erred in finding

a § 2 effects-based violation in District 27 and Nueces

County. J.S. 29-30. According to Texas, since no more

than seven Latino-opportunity districts could be

created in the South and West Texas envelope, and

since Plan C235 creates seven Latino-opportunity

districts there, the first prong of the Gingles § 2 test

has not been satisfied. Id. Appellees and the district

court both agreed that seven Latino-opportunity districts are required in the area. App. 112a. But that

conclusion is the beginning, not the end, of the § 2

inquiry.

Texas’s argument falters because it fails to account

for the invalid racial gerrymander of District 35. Once

that constitutional violation is unraveled, removing

the Travis County Latinos that were gerrymandered

into the district, a Latino-opportunity district still

must be established somewhere in the envelope to

replace it. This means that Nueces County and its

large Latino population must be pulled back into the

envelope in order to meet the State’s § 2 obligation of

having seven Latino-opportunity districts there. See

Supp.App. 300a (FF359) (“Including the population of

Nueces County in the envelope makes it easier to draw

seven Latino opportunity districts under § 2 without

including Travis County.”).

This is the very thing Texas chose not to do when it

designed Districts 27 and 35. It took Nueces County

Latinos who had a § 2 right and put them in an

Anglo-dominated district where their rights could not

be exercised. In exchange, Texas carved up Travis

County racially, placing nearly 150,000 Travis County

Latinos in District 35, even though they did not have

a § 2 right. In short, it engineered a trade that took §

2 rights from those having them and gave those § 2

rights to those who did not have them. LULAC v. Perry

holds that such a trade is itself a § 2 violation.

The Court has rejected the premise that a

State can always make up for the less-thanequal opportunity of some individuals by

providing greater opportunity to others. . . .

[T]hese conflicting concerns are resolved by

allowing the State to use one majority-minority district to compensate for the absence of

another only when the racial group in each

area had a § 2 right and both could not be

accommodated.

548 U.S. at 429.12 “Simply put, the State’s creation of

an opportunity district for those without a § 2 right

The State’s own expert equated Plan C235’s treatment of

Nueces County Latinos in District 27 with the treatment of

offers no excuse for its failure to provide an opportunity district for those with a § 2 right.” Id. at 430.

Yet, this is the very thing the district court found that

the State did. App. 190a (finding Gingles factors

satisfied in challenge to District 27).

Even though the district court’s invalidation of

District 27 expressly relied on LULAC v. Perry’s

disapproval of unbalanced § 2 trade-offs, App. 181a,

Texas does not cite LULAC in its defense of District

27, or so much as address the issue of trading off § 2

rights. Texas’s failure to confront—let alone dispute—

the basis for the district court’s § 2 effects ruling is

fatal to its appeal of the § 2 invalidation of District 27.

“Under § 2, the State must be held accountable for the

effect of [its] choices in denying equal opportunity to

Latino voters.” LULAC, 548 U.S. at 441-42 (emphasis

added).

Webb County Latinos in District 23 in the plan invalidated in

LULAC v. Perry. App. 182a.

CONCLUSION

The Court should dismiss the appeal for lack of

jurisdiction or summarily affirm the Plan C235 order.

It then should lift the stay and remand to the district

court for further proceedings.

Respectfully submitted,

JOSÉ GARZA

MARTIN GOLANDO

GARZA GOLANDO

MORAN, PLLC

115 E Travis St., Ste. 1235

San Antonio, TX 78205

Counsel for Appellee

Mexican American

Legislative Caucus, Texas

House of Representatives

DAVID RICHARDS

RICHARDS, RODRIGUEZ &

SKEITH, LLP

816 Congress Ave., Ste. 1200

Austin, TX 78701

Counsel for Appellees

Shannon Perez, et al.

RENEA HICKS

Counsel of Record

LAW OFFICE OF

MAX RENEA HICKS

P.O. Box 303187

Austin, TX 78703

(512) 480-8231

rhicks@renea-hicks.com

MARC E. ELIAS

BRUCE V. SPIVA

ARIA C. BRANCH

PERKINS COIE LLP

700 13th St. NW, Ste. 600

Washington, DC 20005

ABHA KHANNA

PERKINS COIE LLP

1201 Third Ave., Ste. 4800

Seattle, WA 98101

Counsel for Appellees

Eddie Rodriguez, et al.

ANITA S. EARLS

ALLISON J. RIGGS

SOUTHERN COALITION FOR

SOCIAL JUSTICE

1415 West Highway 54

Ste. 101

Durham, NC 27707

ROBERT NOTZON

LAW OFFICE OF

ROBERT S. NOTZON

1507 Nueces St.

Austin, TX 78701

VICTOR L. GOODE

NAACP

4805 Mt. Hope Dr.

Baltimore, MD 21215

Counsel for Appellees the

Texas State Conference of

NAACP Branches, et al.

LUIS R. VERA, JR.

LAW OFFICES OF LUIS

ROBERTO VERA, JR.

1325 Riverview Towers

111 Soledad

San Antonio, TX 78205

Counsel for Appellees

LULAC, et al.

J. GERALD HEBERT

J. GERALD HEBERT, P.C.

191 Somervelle St., No 405

Alexandria, VA 22304

MARK P. GABER

439 Elm St. NW

Washington, DC 20001

JESSICA RING AMUNSON

JENNER & BLOCK LLP

1099 New York Ave. NW

Ste. 900

Washington, DC 20001

GERALD H. GOLDSTEIN

GOLDSTEIN, GOLDSTEIN,

& HILLEY

310 S. St. Mary’s St.

San Antonio, TX 78205

DONALD H. FLANARY, III

FLANARY LAW FIRM

1005 South Alamo

San Antonio, TX 78210

JESSE GAINES

P.O. Box 50093

Fort Worth, TX 76105

Counsel for Appellees

Margarita Quesada,

et al.

GARY L. BLEDSOE

POTTER BLEDSOE, LLP

316 West 12th St.

Ste. 307

Austin, TX 78701

ROLANDO L. RIOS

LAW OFFICES OF

ROLANDO L. RIOS

115 E. Travis St., Ste. 1645

San Antonio, TX 78205

Counsel for Appellees

Congressmembers Eddie

Bernice Johnson, Sheila

Jackson Lee and Al Green

and NAACP Intervenor

Howard Jefferson

Counsel for Appellee

Congressman Henry

Cuellar

JOAQUIN G. AVILA

P.O. Box 33687

Seattle, WA 98133

Counsel for Appellee

Mexican American

Legislative Caucus

November 20, 2017

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.