Respondents Brief — Greg Abbott, Governor of Texas, et al., Appellants v. Shannon Perez, et al.

Supreme Court briefFeb 26, 2018

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Nos. 17-586 and 17-626

In the Supreme Court of the United States

GREG ABBOTT, GOVERNOR OF TEXAS, ET AL., APPELLANTS

SHANNON PEREZ, ET AL.

ON APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

BRIEF FOR THE UNITED STATES AS APPELLEE

IN SUPPORT OF APPELLANTS

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

JOHN M. GORE

Acting Assistant Attorney

General

JEFFREY B. WALL

EDWIN S. KNEEDLER

Deputy Solicitors General

GREGORY B. FRIEL

Deputy Assistant Attorney

General

JEFFREY E. SANDBERG

Assistant to the Solicitor

General

BONNIE I. ROBIN-VERGEER

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

The United States will address the following questions:

1. Whether this Court may exercise jurisdiction

over these appeals.

2. Whether the district court erred in concluding

that the Texas Legislature acted with a racially discriminatory purpose in adopting districts in its 2013 congressional and State House plans that the district court

had included in its own 2012 interim redistricting plans

and had provisionally determined were not unlawful.

3. Whether the district court erred in concluding

that Congressional District 35 in the 2013 congressional

plan violated the Equal Protection Clause of the Fourteenth Amendment.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction ............................................................................ 2

Constitutional and statutory provisions involved...................... 2

Statement ...................................................................................... 2

Summary of argument ............................................................... 16

Argument:

I. This Court may exercise jurisdiction over these

appeals ............................................................................ 20

II. The district court erred in its analysis of

intentional vote dilution in the 2013 congressional

and State House plans................................................... 24

A. Plaintiffs’ claims of intentional vote dilution

require them to show that the 2013 Legislature

acted with a discriminatory racial purpose .......... 24

B. The district court incorrectly presumed

discriminatory intent and shifted the burden

of proof to the state ................................................. 31

C. This Court should reject the basis for the

district court’s findings of intentional

discrimination .......................................................... 37

1. Application of a strong presumption of

good faith is appropriate in this case .............. 38

2. Neither the district court nor plaintiffs’

filings to date in this Court have identified

sufficient evidence to rebut the strong

presumption of good faith ................................ 40

III. The district court erred in concluding that

Congressional District 35 is an unconstitutional

racial gerrymander ........................................................ 44

Conclusion ................................................................................... 49

(III)

TABLE OF AUTHORITIES

Cases:

Page

Abrams v. Johnson, 521 U.S. 74 (1997)............................ 6

Alabama Legislative Black Caucus v. Alabama,

135 S. Ct. 1257 (2015) .......................................... 6, 44, 45

Bartlett v. Strickland, 556 U.S. 1 (2009) .................... 5, 10

Bethune-Hill v. Virginia State Bd. of Elections,

137 S. Ct. 788 (2017) ...................................... 6, 27, 45, 47

Burns v. Richardson, 384 U.S. 73 (1966) ............................ 29

Bush v. Vera, 517 U.S. 952 (1996) .................................. 6

Carson v. American Brands, Inc.,

450 U.S. 79 (1981) ......................................................... 17, 20

Chen v. City of Houston, 206 F.3d 502 (5th Cir. 2000),

cert. denied, 532 U.S. 1046 (2001) ............................... 34, 35

City of Cleburne v. Cleburne Living Ctr., 473 U.S.

432 (1985) ............................................................................. 34

City of Mobile v. Bolden, 446 U.S. 55 (1980) ................ 28, 32

Coleman v. Court of Appeals, 566 U.S. 30 (2012) ............... 27

Cooper v. Harris, 137 S. Ct. 1455 (2017) ................ passim

Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1998) .................. 34

Davis v. Abbott, 781 F.3d 207 (5th Cir.), cert. denied,

136 S. Ct. 534 (2015) ............................................................. 7

Garza v. County of Los Angeles, 918 F.2d 763

(9th Cir. 1990), cert. denied, 498 U.S. 1028 (1991) ........ 4

Growe v. Emison, 507 U.S. 25 (1993) .................................... 3

Gulfstream Aerospace Corp. v. Mayacamas Corp.,

485 U.S. 271 (1988).............................................................. 20

Gunn v. University Comm. to End the War in Viet

Nam, 399 U.S. 383 (1970)................................................... 23

Hayden v. Paterson, 594 F.3d 150 (2d Cir. 2010) ........ 30, 34

Hunt v. Cromartie,

526 U.S. 541 (1999)................................... 5, 17, 25, 26, 27, 37

Cases—Continued:

Page

Hunter v. Underwood, 471 U.S. 222 (1985) ........................ 33

Johnson v. De Grandy, 512 U.S. 997 (1994) .............. 5, 38

Johnson v. Governor, 405 F.3d 1214 (11th Cir.),

cert. denied, 546 U.S. 1015 (2005) ..................................... 34

Jones v. City of Lubbock, 727 F.2d 364 (5th Cir. 1984)...... 35

Kirksey v. Board of Supervisors, 554 F.2d 139

(5th Cir.), cert. denied, 434 U.S. 968 (1977) ..................... 35

Lawyer v. Department of Justice,

521 U.S. 567 (1997)........................................................ 22, 29

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006).............................................. 5, 29, 30, 37

McCleskey v. Kemp, 481 U.S. 279 (1987) ............................ 28

Miller v. Johnson, 515 U.S. 900 (1995)....................... passim

Mississippi State Chapter, Operation PUSH, Inc. v.

Mabus, 932 F.2d 400 (5th Cir. 1991) ................................. 29

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274 (1977).............................................................. 27

Palmer v. Thompson, 403 U.S. 217 (1971) .......................... 33

Perry v. Perez, 565 U.S. 388 (2012)............................. passim

Personnel Adm’r v. Feeney, 442 U.S. 256 (1979) ............... 25

Purcell v. Gonzalez, 549 U.S. 1 (2006) ................................. 23

Reno v. Bossier Parish Sch. Bd.,

520 U.S. 471 (1997)............................................ 25, 26, 28, 36

Ricci v. DeStefano, 557 U.S. 557 (2009) .............................. 42

Rogers v. Lodge, 458 U.S. 613 (1982) .................... 4, 25, 26

Schaffer v. Weast, 546 U.S. 49 (2005) .................................. 26

Shaw v. Hunt, 517 U.S. 899 (1996) ................................... 6

Shaw v. Reno, 509 U.S. 630 (1993) ............................. 5, 26

Shelby County v. Holder, 133 S. Ct. 2612

(2013) ................................................................... 3, 12, 27

Cases—Continued:

Page

Texas v. United States, 887 F. Supp. 2d 133

(D.D.C. 2012), vacated and remanded,

133 S. Ct. 2885 (2013) ...................................................... 11

Thornburgh v. Gingles, 478 U.S. 30 (1986) ............... 4, 47, 48

Village of Arlington Heights v. Metropolitan Hous.

Dev. Corp., 429 U.S. 252 (1977) ..................25, 26, 27, 28, 29

Voinovich v. Quilter, 507 U.S. 146 (1993) .................. 4, 26

Washington v. Davis, 426 U.S. 229 (1976) .................... 25, 27

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) .................. 30

Whitcomb v. Chavis, 403 U.S. 124 (1971) ......................... 23

Whitcomb v. Davis, 403 U.S. 914 (1971).............................. 23

Wise v. Lipscomb, 437 U.S. 535 (1978) .................... 22, 29, 42

Constitutions and statutes:

U.S. Const. Amend. XIV

(Equal Protection Clause) ............................... 3, 4, 5, 44, 46

Voting Rights Act of 1965, 52 U.S.C. 10301 et seq.

(Supp. III 2015) ..................................................................... 3

52 U.S.C. 10301 (§ 2) ......................................................... 3

52 U.S.C. 10301(a) ............................................................. 4

52 U.S.C. 10301(b) ............................................................. 4

52 U.S.C. 10302(c) (§ 3(c))............................................... 12

52 U.S.C. 10304(a) (§ 5) ..................................................... 7

52 U.S.C. 10308(d) ............................................................. 3

28 U.S.C. 1253 ........................................................ 2, 16, 20, 23

28 U.S.C. 1292(a)(1) ......................................................... 17, 20

28 U.S.C. 2284(a) ....................................................... 17, 20, 23

Tex. Const. Art. III:

§ 5(a) ................................................................................. 44

§ 24(b) ............................................................................... 44

§ 40 .................................................................................... 44

VII

Statutes—Continued:

Page

Tex. Elec. Code § 14.001 (West 2017) .................................. 21

Miscellaneous:

S. Rep. No. 417, 97th Cong., 2d Sess. (1982) ................ 4, 5

In the Supreme Court of the United States

Nos. 17-586 & 17-626

GREG ABBOTT, GOVERNOR OF TEXAS, ET AL., APPELLANTS

SHANNON PEREZ, ET AL.

ON APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

BRIEF FOR THE UNITED STATES AS APPELLEE

IN SUPPORT OF APPELLANTS

OPINIONS BELOW

In No. 17-586, the district court’s order on Texas’s

2013 congressional redistricting plan (Plan C235)

(C.J.S. App. 3a-119a) 1 is reported at 274 F. Supp. 3d 624.

That order incorporates the court’s prior opinion on the

2011 congressional redistricting plan (Plan C185)

(C.J.S. App. 120a-366a; see C.J.S. App. 14a n.13), which

is reported at 253 F. Supp. 3d 864.

In No. 17-626, the district court’s order on Texas’s

2013 State House redistricting plan (Plan H358) (H.J.S.

App. 3a-87a) is reported at 267 F. Supp. 3d 751. That

order incorporates the court’s prior opinion on the 2011

State House redistricting plan (Plan H283) (H.J.S. App.

88a-299a; see H.J.S. App. 7a n.5), which is reported at

250 F. Supp. 3d 123.

Citations to “C.J.S.” refer to filings in No. 17-586, while citations

to “H.J.S.” refer to filings in No. 17-626.

(1)

JURISDICTION

In No. 17-586, the order of the district court was entered on August 15, 2017. Appellants filed their notice

of appeal on August 18, 2017 (C.J.S. App. 1a-2a). In No.

17-626, the order of the district court was entered on

August 24, 2017. Appellants filed their notice of appeal

on August 28, 2017 (H.J.S. App. 1a-2a). Appellants invoke this Court’s jurisdiction under 28 U.S.C. 1253.

This Court has postponed further consideration of the

question of jurisdiction pending a hearing on the merits.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Pertinent constitutional and statutory provisions are

reproduced in the appendices to the jurisdictional statements. See C.J.S. App. 426a-428a; H.J.S. App. 437a-439a.

STATEMENT

These appeals concern redistricting plans enacted by

the Texas Legislature in 2013 for the State’s House of

Representatives (the State House plan) and for the

State’s Representatives in the United States House of

Representatives (the congressional plan). The 2013

plans were based, entirely or almost entirely, on interim

remedial plans that a three-judge court of the District

Court for the Western District of Texas adopted in

2012, after that court had enjoined use of the Legislature’s prior 2011 redistricting plans pending separate

preclearance proceedings in the District Court for the

District of Columbia. In the decisions under review, the

district court invalidated several districts in the 2013

congressional and State House plans on the grounds

that they were intentionally discriminatory, were racially gerrymandered, or caused unlawful vote dilution

in violation of the Equal Protection Clause of the Fourteenth Amendment or the Voting Rights Act of 1965

(VRA), 52 U.S.C. 10301 et seq. (Supp. III 2015). 2

The United States intervened in the Texas district

court to assert claims that the 2011 plans were enacted

with racially discriminatory intent in violation of Section 2 of the VRA, 52 U.S.C. 10301. The United States

has not brought any claims challenging the 2013 congressional or State House plans. The United States

nonetheless retains a significant interest in these appeals because the United States, through the Attorney

General, has primary responsibility for enforcing the

VRA. See 52 U.S.C. 10308(d). Accordingly, the United

States has a substantial interest in the proper interpretation of the VRA and the related constitutional protection against the unjustified use of race in redistricting.

1. “[T]he Constitution leaves with the States primary responsibility for apportionment of their federal

congressional and state legislative districts.” Growe v.

Emison, 507 U.S. 25, 34 (1993). States have substantial

discretion to make the judgments and compromises

necessary to balance the complex array of “competing

interests” involved in redistricting. Miller v. Johnson,

515 U.S. 900, 915 (1995). At the same time, both the

Constitution and federal statutes impose constraints on

redistricting in order to prevent racial discrimination.

a. Section 2 of the VRA imposes a “permanent, nationwide ban on racial discrimination in voting.” Shelby

County v. Holder, 133 S. Ct. 2612, 2631 (2013). Section

2 prohibits any “voting qualification or prerequisite to

voting or standard, practice, or procedure” that “results

in a denial or abridgement of the right of any citizen of

All references to Sections of the VRA are found in the 2015 Supplement of the United States Code.

the United States to vote on account of race or color.”

52 U.S.C. 10301(a). As amended in 1982, Section 2 provides that a violation may be “established if, based on

the totality of circumstances, it is shown that the [election] processes * * * in the State or political subdivision are not equally open to participation by members

of a [protected] class [who] have less opportunity than

other members of the electorate to participate in the political process and to elect representatives of their

choice.” 52 U.S.C. 10301(b).

Both Section 2 of the VRA and the Equal Protection

Clause of the Fourteenth Amendment prohibit intentional “vote dilution.” Rogers v. Lodge, 458 U.S. 613,

617, 621 (1982) (Fourteenth Amendment); Garza v.

County of Los Angeles, 918 F.2d 763, 766 (9th Cir. 1990)

(Section 2), cert. denied, 498 U.S. 1028 (1991); S. Rep.

No. 417, 97th Cong., 2d Sess. 27 & n.108 (1982) (Senate

Report) (same). Vote dilution is caused “either ‘by the

dispersal of [minority voters] into districts in which

they constitute an ineffective minority of voters or from

the concentration of [minority voters] into districts

where they constitute an excessive majority.’ ” Voinovich v. Quilter, 507 U.S. 146, 154 (1993) (quoting Thornburgh v. Gingles, 478 U.S. 30, 46 n.11 (1986)).

In addition, vote dilution without a finding of discriminatory intent may violate Section 2 under its “results” test. This Court has identified three “preconditions” for a vote-dilution claim under that test: (1) The

minority group must be “sufficiently large and geographically compact to constitute a majority in a singlemember district,” (2) the minority group must be “politically cohesive,” and (3) the majority must “vote[] sufficiently as a bloc” to usually “defeat the minority’s preferred candidate.” Gingles, 478 U.S. at 50-51; see

Cooper v. Harris, 137 S. Ct. 1455, 1470 (2017). For

single-member districting schemes, the first precondition also requires showing a “possibility of creating

more than the existing number of reasonably compact

districts with a sufficiently large minority population to

elect candidates of its choice.” Johnson v. De Grandy,

512 U.S. 997, 1008 (1994). If a party establishes those

preconditions, a court then must “consider the ‘totality

of circumstances’ to determine whether members of a

racial group have less opportunity than do other members of the electorate.” League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 425-426 (2006) (LULAC)

(quoting De Grandy, 512 U.S. at 1011-1012); see Senate

Report 27-29 (articulating factors to consider). The

Court has reserved the question of how “intentional discrimination affects the Gingles analysis” for a Section 2

claim. Bartlett v. Strickland, 556 U.S. 1, 20 (2009) (plurality opinion).

b. The Equal Protection Clause, in addition to prohibiting intentional vote dilution, forbids the unjustified, predominant use of race in drawing districts,

known as “unconstitutional racial gerrymandering.”

Shaw v. Reno, 509 U.S. 630, 641 (1993) (Shaw I). Such

a claim is “ ‘analytically distinct’ from a vote dilution

claim.” Miller, 515 U.S. at 911 (citation omitted). In

adjudicating a racial-gerrymandering claim, the court

must determine whether race was “the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular

district”—i.e., whether race is the “dominant and controlling rationale” for a district’s lines. Id. at 913, 916. If

so, that use of race comports with the Equal Protection

Clause only if it is narrowly tailored to serve a compelling state interest. Id. at 920; see Hunt v. Cromartie,

526 U.S. 541, 547 (1999) (“[S]trict scrutiny applies if race

was ‘the predominant factor’ motivating the legislature’s

districting decision.”).

This Court has “long assumed” that States have a

compelling interest in complying with Section 2 of the

VRA. Cooper, 137 S. Ct. at 1469; see, e.g., Abrams v.

Johnson, 521 U.S. 74, 91 (1997); Shaw v. Hunt, 517 U.S.

899, 915 (1996) (Shaw II); Bush v. Vera, 517 U.S. 952,

978 (1996) (plurality opinion); Bush, 517 U.S. at 990

(O’Connor, J., concurring). 3 The predominant use of

race in an effort to comply with the VRA will survive

strict scrutiny so long as a State has “a ‘strong basis in

evidence’ in support of the (race-based) choice that it has

made.” Alabama Legislative Black Caucus v. Alabama,

135 S. Ct. 1257, 1274 (2015) (citation omitted). A “strong

basis in evidence” exists so long as legislators “have good

reasons to believe such use [of race] is required, even if

a court does not find that the actions were necessary for

statutory compliance.” Ibid. (citation omitted). That

standard affords States “ ‘breathing room’ to adopt reasonable compliance measures that may prove, in perfect

hindsight, not to have been needed.” Cooper, 137 S. Ct.

at 1464 (quoting Bethune-Hill v. Virginia State Bd. of

Elections, 137 S. Ct. 788, 802 (2017)).

2. This litigation arises from redistricting undertaken by Texas following the 2010 Census. The Census

showed that Texas had gained more than four million

This Court also has repeatedly assumed that States have a compelling interest in complying with Section 5 of the VRA. See, e.g.,

Bethune-Hill v. Virginia State Bd. of Elections, 137 S. Ct. 788, 801

(2017) (rejecting racial-gerrymandering claim where the “State had

sufficient grounds to determine that the race-based calculus it employed * * * was necessary to avoid violating § 5”).

new residents, which entitled it to four additional Representatives in the U.S. House of Representatives. See

Perry v. Perez, 565 U.S. 388, 390 (2012) (per curiam).

a. In June 2011, the Texas Legislature enacted redistricting plans for, as relevant here, the State House

(Plan H283) and the U.S. congressional delegation (Plan

C185). 4 At that time, Section 5 of the VRA required the

State to obtain preclearance before implementing those

plans, a process that required it to show that the plans

“neither ha[d] the purpose nor w[ould] have the effect”

of discriminating on the basis of race. 52 U.S.C. 10304(a).

Texas sought preclearance for its 2011 plans by filing a

declaratory-judgment action in the District Court for

the District of Columbia in July 2011.

Meanwhile, in June and July 2011, various plaintiffs

brought Section 2 and constitutional claims against the

2011 congressional and State House plans, which were

consolidated before a three-judge district court in the

Western District of Texas. That court enjoined use of

the 2011 plans and—lacking any final decision on preclearance from the D.C. district court—adopted interim

redistricting plans to govern the 2012 elections. In doing so, the district court believed that it “was not required to give any deference to the Legislature’s enacted plan[s].” Perry, 565 U.S. at 396 (citation and internal quotation marks omitted).

The Legislature also enacted a redistricting plan for the State

Senate, which led to separate litigation before the same three-judge

court. See Davis v. Perry, No. 11-788 (W.D. Tex. Sept. 22, 2011).

Following adoption of a revised plan in 2013, the State Senate litigation was dismissed as moot. See Davis v. Abbott, 781 F.3d 207,

209 (5th Cir.), cert. denied, 136 S. Ct. 534 (2015). The State Senate

plan is not at issue in these appeals.

This Court vacated the interim plans and remanded

for further proceedings. Perry, 565 U.S. at 399. The

Court agreed that, absent preclearance of the State’s

2011 plans, it was necessary for the district court to devise interim plans for the 2012 elections. Id. at 392. The

Court concluded, however, that the district court had

erred “[t]o the extent [it] * * * substituted its own concept of the ‘collective public good’ ” in formulating interim relief. Id. at 396. The Court concluded that “[the]

district court should take guidance from the State’s recently enacted plan,” to the extent the legislative policies reflected in that plan “ ‘do not lead to violations of

the Constitution or the Voting Rights Act.’ ” Id. at 393

(citation omitted).

This Court then articulated legal standards for devising interim plans on remand. When portions of a

State’s enacted plan are alleged to violate the Constitution or Section 2 of the VRA, “a district court should still

be guided by that plan, except to the extent those legal

challenges are shown to have a likelihood of success on

the merits.” Perry, 565 U.S. at 394. When portions of

the State’s enacted plan are the subject of a Section 5

preclearance proceeding elsewhere that has not yet

been completed, the district court must “tak[e] guidance from a State’s policy judgments unless they reflect

aspects of the state plan that stand a reasonable probability of failing to gain § 5 preclearance.” Id. at 395. The

Court reiterated that the district court “must, of course,

take care not to incorporate into the interim plan any

legal defects in the state plan.” Id. at 394.

b. On remand, in February 2012, the Texas district

court ordered the use of revised interim plans for the

2012 elections (Plans C235 and H309). C.J.S. App. 367a424a; H.J.S. App. 300a-315a. Both were compromise

plans accepted by the State and certain plaintiffs.

C.J.S. App. 6a, 368a, 394a-395a.

With respect to congressional districting, Plan C235

made significant changes to nine districts as compared to

the Legislature’s 2011 plan. But it made no changes to

the two congressional districts now at issue: CD27, a

majority-Anglo district covering Nueces County (which

includes Corpus Christi) and points northward; and

CD35, a majority-Latino district extending from Travis

County (Austin) to Bexar County (San Antonio). C.J.S.

App. 408a, 419a.

Before 2011, CD27 had been a majority-Latino district that included Nueces County. The 2011 version of

CD27 still included the concentration of Latino voters

in Nueces County, but placed them in a majority-Anglo

district. C.J.S. App. 417a. Various plaintiffs raised Section 2 claims and Section 5 arguments against the new

CD27 (id. at 388a, 417a-423a), but the district court concluded that those challenges were unlikely to succeed

under the standards articulated in Perry. The court

found that, regardless of how CD27 was configured,

“only 7 reasonably compact Latino opportunity districts

c[ould] be drawn in compliance with § 2” in the “South

and West Texas area.” Id. at 418a, 421a. And the court

explained that Plan C235 would restore a different

district—CD23—as a Latino opportunity district,

thereby ensuring that the plan had seven such districts.

The court thus concluded that Plan C235 “substantially

addresses the § 2 violation,” and retention of the 2011

version of CD27 was appropriate in order to “respect[]

the Legislature’s policy decisions concerning the placement of Nueces County.” Id. at 421a. The court also did

not identify any retrogression concerns with CD27 under Section 5. Cf. id. at 399a, 422a-423a.

As to CD35, one group of private plaintiffs urged the

district court to find it a proper Section 2 Latino opportunity district, while others urged the court to reject it as

an unconstitutional racial gerrymander or as intentionally

vote dilutive. The court concluded that the racialgerrymandering claim was a “close call,” C.J.S. App. 409a,

but found that the challenge was likely without merit, both

because of inadequate evidence that race had predominated in the creation of CD35 and because there was no

substantial likelihood that CD35 would fail strict scrutiny in any event. Id. at 415a. The court also found that

plaintiffs had not shown that CD35 was created for the

discriminatory purpose of “dismantling” a prior “crossover” district (CD25) rather than because of “partisan politics.” Ibid. 5

With respect to the State House, in ordering the use

of Plan H309, the district court made “substantial[]”

changes to 21 districts. H.J.S. App. 314a. But Plan

H309 retained 122 State House districts without

change, including most of those now before this Court:

HD54 and HD55 in Bell County; HD32 and HD34 in

Nueces County; and HD103, HD104, and HD105 in Dallas County. Id. at 303a n.4. The court explained that by

keeping those districts unchanged, it was “[f ]ollowing

[this] Court’s direction to leave undisturbed any district

that is free from legal defect.” Id. at 303a.

A “crossover” district is “one in which minority voters make up

less than a majority of the voting-age population,” but in which the

“minority population, at least potentially, is large enough to elect

the candidate of its choice with help from voters who are members

of the majority and who cross over to support the minority’s preferred candidate.” Bartlett, 556 U.S. at 13 (plurality opinion). A

“coalition” district is one in which “two minority groups form a coalition to elect the candidate of the coalition’s choice.” Ibid.

Although the district court found that Plans C235

and H309 satisfied this Court’s standards in Perry, it

noted that its decisions were preliminary and not final

rulings on the merits of any claim concerning the 2011

plans. C.J.S. App. 367a; H.J.S. App. 315a. The 2012

elections were conducted under Plans C235 and H309.

c. In August 2012, the D.C. district court denied preclearance to Texas’s 2011 congressional and State House

redistricting plans. See Texas v. United States, 887 F.

Supp. 2d 133 (three-judge court), vacated and remanded,

133 S. Ct. 2885 (2013). As to the congressional plan, the

court concluded that Texas had failed to meet its burden

under Section 5 of the VRA to prove an absence of discriminatory intent. Id. at 159-166. As to the State House

plan, the court concluded that Texas had failed to meet

its burden under Section 5 to establish the absence of

retrogressive effect, and also stated that the record suggested that that effect “may not have been accidental.”

Id. at 178; see id. at 166-178. The State appealed the denial of preclearance to this Court.

d. In March 2013—while Texas’s preclearance appeal was pending, and while the litigation below was

held in abeyance—the Texas Attorney General proposed to the Legislature that it enact the district court’s

2012 interim maps as the State’s permanent redistricting plans. C.J.S. App. 429a-435a. He observed that the

2011 plans had been found by the D.C. district court to

be “tainted by evidence of discriminatory purpose,” and

explained that “the best way to remedy the violations

* * * is to adopt the court-drawn interim plans as the

State’s permanent redistricting maps.” Id. at 432a. In

May 2013, the Texas Governor called the Legislature

into special session to consider that proposal. C.J.S.

Supp. App. 231a.

On June 23, 2013, the Texas Legislature passed bills

adopting new redistricting plans. The Texas Legislature adopted without alteration the court-ordered congressional interim map (Plan C235) as its permanent

congressional plan. C.J.S. App. 9a. The Legislature

made minor changes to the court-ordered State House

interim map and then enacted that map as its permanent State House plan (Plan H358). Ibid. The 2013

plans were signed into law on June 26, 2013, and became

effective in September 2013. C.J.S. Supp. App. 232a.

e. On June 25, 2013, this Court issued its decision in

Shelby County v. Holder, 133 S. Ct. 2612 (2013), holding

that the coverage formula in Section 4(b) of the VRA

was unconstitutional and could “no longer be used as a

basis for subjecting jurisdictions to preclearance” under Section 5. Id. at 2631. This Court then vacated the

D.C. district court’s judgment denying preclearance,

133 S. Ct. 2885, and on remand, that court granted

Texas’s motion for voluntary dismissal.

3. a. Litigation in the Texas district court resumed.

The court allowed plaintiffs to amend their complaints

to challenge the newly enacted 2013 plans and, with respect to existing claims against the 2011 plans, to seek

relief under Section 3(c) of the VRA, 52 U.S.C. 10302(c).

D. Ct. Doc. 886, at 8-19 (Sept. 6, 2013). 6 The court ordered, however, that the Legislature’s newly enacted

2013 plans (Plans C235 and H358) would be used for the

2014 elections. Id. at 21-26. The court noted that it had

Section 3(c), known as the VRA’s “bail-in” provision, permits a

district court, upon a finding that “violations of the [F]ourteenth or

[F]ifteenth [A]mendment justifying equitable relief have occurred

within the territory of [a] State or political subdivision,” to require

the defendant to seek approval of future voting changes through a

regime similar to Section 5 preclearance. 52 U.S.C. 10302(c).

“already” conducted “a preliminary injunction analysis”

on plaintiffs’ challenges in its decisions adopting the

2012 interim plans, id. at 22, and it found that the sole

“new legal challenge” brought by plaintiffs (concerning

HD90, which had been modified by the 2013 Legislature) was not likely to succeed, id. at 23-24. The court

acknowledged it still needed to “reach a final decision

on the merits of all claims,” but concluded that it was

“impossible to reach that decision prior to the various

deadlines for the 2014 elections.” Id. at 22.

The United States intervened in the litigation. D. Ct.

Doc. 904 (Sept. 24, 2013). In its complaint, the United

States did not challenge the 2013 plans, but instead argued that the 2011 plans (Plans C185 and H283) had

been adopted with racially discriminatory intent in violation of Section 2 and that Section 3(c) relief was warranted. D. Ct. Doc. 907, at 14 (Sept. 25, 2013). The

United States’ complaint asserted only intentional votedilution claims, and did not raise any Section 2 results

claims.

b. In July and August 2014, the Texas district court

conducted bench trials on the claims against the 2011

congressional and State House plans. C.J.S. App. 13a.

In October 2015, while a decision on the 2011 plans

was still pending, plaintiffs sought a preliminary injunction barring the use of the 2013 plans for the 2016 elections. The court denied that request, explaining that the

2013 plans were “the product of the [c]ourt’s preliminary

injunction analysis” in 2012, and concluding that “scrutinizing the same plan[s] under the same preliminary injunction analysis would [not] produce a different outcome today.” D. Ct. Doc. 1324, at 5-6 (Nov. 6, 2015). The

2013 plans were therefore used for the 2016 elections.

c. Two-and-a-half years after trial, in various orders

issued in March through May 2017, the district court

held by a 2-1 vote that Texas had violated the VRA, the

Constitution, or both in drawing various districts in the

2011 plans. C.J.S. App. 120a-366a; H.J.S. App. 88a299a; see C.J.S. Supp. App. 1a-490a (separate findings

of fact); H.J.S. Supp. App. 1a-309a (same).

As relevant here, with respect to the 2011 congressional plan, the district-court majority found that CD27

and CD35 were unlawful (notwithstanding the district

court’s prior provisional determinations to the contrary).

C.J.S. App. 161a-195a, 330a. As to CD27, the court concluded that the placement of Hispanic voters in Nueces

County into a majority-Anglo district “had the effect

and was intended to dilute their opportunity to elect

their candidate of choice.” Id. at 330a. The court stated

that, although only “seven compact Latino opportunity

districts could be drawn in South/West Texas,” “Nueces

County Hispanics could be included in one of those districts for § 2 purposes.” Id. at 181a. As to CD35, the

court concluded that the district was an unconstitutional

racial gerrymander, finding that race had predominated

in its construction and that the district could not survive

strict scrutiny. Id. at 175a. Judge Smith dissented, both

on the ground that the challenges to the 2011 plans were

moot and on the merits. Id. at 331a-366a.

With regard to the 2011 State House plan, the

district-court majority found that plaintiffs had proven

intentional vote dilution on a statewide basis and also in

certain regions. H.J.S. App. 192a, 275a. The specific

districts invalidated because of discriminatory intent included those in Nueces County (HD32 and HD34), Bell

County (HD54 and HD55), and Dallas County (HD103,

HD104, and HD105). Id. at 126a-137a, 164a-173a, 178a-

183a, 275a. Judge Smith again dissented on both mootness and the merits. Id. at 277a-299a.

After issuing those decisions on the 2011 plans, the

district court held a trial on the 2013 plans in July 2017.

Because the United States asserted no claims against the

2013 plans, it did not participate in the trial.

d. In decisions issued in August 2017, the district

court invalidated several districts in the State’s 2013

congressional and State House plans. See C.J.S. App.

3a-119a; H.J.S. App. 3a-87a.

As relevant here, the district court held that every

district it had found to be intentionally discriminatory

or racially gerrymandered in the 2011 plans was also

necessarily unlawful in the 2013 plans “where th[e] district lines remain[ed] unchanged.” C.J.S. App. 46a; see

id. at 35a; H.J.S. App. 6a. The court acknowledged that

the 2013 Legislature had effectively “adopted the

[c]ourt’s [interim] plans” from 2012, but reasoned that

that action “d[id] not change” the analysis because the

Legislature “did not engage in a deliberative process to

ensure that the 2013 plans cured any taint from the 2011

plans.” C.J.S. App. 40a. Based on that conclusion, the

court suggested that the Legislature had enacted the

2013 plans “as part of a litigation strategy” designed to

“insulate” the State’s actions from further challenge,

rather than as an attempt to “adopt legally compliant

plans free from discriminatory taint.” Id. at 40a-41a.

Thus, as to the 2013 congressional plan, the district

court invalidated CD27 and CD35, see id. at 117a-118a,

and as to the 2013 State House plan, the court invalidated HD32 and HD34 (Nueces County), HD54 and

HD55 (Bell County), and HD103, HD104, and HD105

(Dallas County), see H.J.S. App. 84a-85a. 7

Concluding that these violations “must be remedied,” C.J.S. App. 117a; see H.J.S. App. 84a-85a, the district court directed the Texas Attorney General to advise the court “within three business days” whether the

Texas Legislature would “take up redistricting in an effort to cure these violations.” C.J.S. App. 118a; H.J.S.

App. 86a. The court further ordered that, absent such

legislative redistricting, it would hold “hearing[s] to

consider remedial plans” in early September 2017. Ibid.

Texas sought emergency relief from this Court,

which stayed the district court’s orders invalidating the

2013 redistricting plans. Order, No. 17A225 (Sept. 12,

2017); Order, No. 17A245 (Sept. 12, 2017). Upon consideration of Texas’s jurisdictional statements, this Court

ordered briefing and postponed further consideration of

the question of jurisdiction pending hearing of the case

on the merits. Order, No. 17-586 (Jan. 12, 2018); Order,

No. 17-626 (Jan. 12, 2018).

SUMMARY OF ARGUMENT

I. This Court possesses jurisdiction under 28 U.S.C.

1253, which allows direct appeals to this Court from an

The district court also invalidated HD90—a district newly drawn

in the 2013 State House plan—as a racial gerrymander, and held

that HD32 and HD34 were unlawful for the additional reason that

they violated the Section 2 results test. See H.J.S. App. 85a. In

addition, the court held that CD27 violated the Section 2 results test.

C.J.S. App. 112a; see also id. at 180a-195a. The United States takes

no position on those rulings. The United States did not assert any

results claims in this litigation, and HD90 was revised in 2013 and

thus does not involve the legislative adoption of a district provisionally approved by the district court—the principal issue addressed

by the United States in this brief.

order granting or denying an interlocutory or permanent injunction in three-judge district-court actions under 28 U.S.C. 2284(a) challenging the constitutionality

of congressional districts or statewide legislative apportionments. This Court has made clear in the analogous

context of 28 U.S.C. 1292(a)(1) that even an order not

styled as the grant or denial of an injunction is appealable if it has the “practical effect” of granting or denying an injunction, “might have a ‘serious, perhaps irreparable, consequence,’ ” and “can be ‘effectually challenged’ only by immediate appeal.” Carson v. American Brands, Inc., 450 U.S. 79, 84 (1981). Under the unusual facts of this case, the district court’s orders meet

those standards. The orders had the effect of prohibiting further use of the State’s 2013 congressional and

State House plans; they had the serious consequence of

requiring statewide redistricting on the eve of preparations for the 2018 election cycle; and, under the timing

exigencies present here, the orders could only be effectually challenged by immediate appeal.

II. The district court committed errors of law in

finding that the Texas Legislature engaged in intentional vote dilution in adopting Congressional District 27

and State House Districts 32, 34, 54, 55, 103, 104, and 105

in the 2013 plans, all of which were identical to districts

contained in the court’s own 2012 interim plans.

A. The principles for adjudicating claims of intentional vote dilution are well established. A legislative

enactment may be invalidated on that basis only if the

plaintiffs show that the legislature acted with a discriminatory purpose. In the redistricting context, as elsewhere, courts must accord a “presumption of good faith

[to] legislative enactments.” Hunt v. Cromartie, 526

U.S. 541, 553 (1999) (citation omitted). Courts must not

infer discriminatory racial intent solely from disparate

racial effects, and a finding of past intentional discrimination standing alone generally cannot support an inference of intentional discrimination in a new enactment. And when, as here, a State adopts legislatively a

new redistricting plan after a prior plan is held unlawful, the burden of proof rests on the plaintiff in any challenge to the new plan.

These principles also suggest a further principle: A

court should afford particular weight to a state legislature’s reliance on a court-ordered remedy. When a

court has found in a reasoned decision that an interim

plan redresses all likely violations of law, and when the

state legislature permanently adopts that plan to replace its original enactment, the normal presumption of

good faith accorded to legislative enactments is heightened by the State’s acceptance of the judicial plan. Applying a strong presumption of good faith in this context

would not direct an answer to the intent inquiry as a

matter of law, but plaintiffs should bear a heavy burden

in establishing that a state legislature’s adoption of a

court-ordered plan was intentionally discriminatory.

B. The district court erred in its analysis of intentional vote dilution. Instead of asking whether plaintiffs

had proven that the 2013 Legislature adopted the 2013

plans with the purpose of harming minority voters, the

court asked whether the State had shown that it removed the “taint of discriminatory intent” that in the

court’s view had “carr[ied] over” from the 2011 plans.

C.J.S. App. 38a, 46a. But the lawfulness of the 2013

plans turns on the motivations of the 2013 Legislature,

and plaintiffs—not the State—bore the burden of proof

in that analysis.

C. The circumstances here confirm the soundness of

applying a strong presumption of good faith. The 2013

Legislature’s plans were identical, or nearly so, to the

court-ordered interim plans. In adopting those interim

plans after extensive evidentiary proceedings, the district court expressly considered under Perry v. Perez,

565 U.S. 388 (2012) (per curiam), and provisionally rejected, claims of intentional discrimination involving the

same districts now at issue. And the court made numerous other ameliorative changes, which gave the Legislature good reason to believe that the interim plans

would suffice to remedy any prior deficiencies.

The district court’s orders and plaintiffs’ jurisdictionalstage filings in this Court do not point to evidence that

would rebut the strong presumption of good faith. The

court perceived that Texas was motivated to pursue a legislative solution as a “strategy” to end the pending litigation. But such efforts at voluntary compliance presumptively further—not frustrate—Congress’s goal of

ameliorating unlawful discrimination. And the court

identified no evidence showing that Texas acted with an

intent to discriminate rather than an intent to adopt legally compliant plans.

III. The district court also erred in finding Congressional District 35 to be an unconstitutional racial gerrymander. The “predominant” consideration in setting

the boundaries of CD35 in 2013 was not race, but rather

whether they matched the boundaries provisionally

deemed lawful in 2012. And the State had “good reasons” to believe that the Voting Rights Act required it

to draw CD35 in 2011 and maintain it in 2013, including

that the district court had found in 2012 that CD35

aided in complying with the State’s obligations under

the VRA to draw seven Latino opportunity districts in

South and West Texas.

ARGUMENT

I. THIS COURT MAY EXERCISE JURISDICTION OVER

THESE APPEALS

A party may appeal directly to this Court “from an

order granting or denying * * * an interlocutory or

permanent injunction” in a civil action required to be

adjudicated by a three-judge district court. 28 U.S.C.

1253. Under 28 U.S.C. 2284(a), a three-judge district

court is required for actions “challenging the constitutionality of the apportionment of congressional districts

or the apportionment of any statewide legislative body.”

Ordinarily, when a district court has not entered an order granting or denying an injunction, this Court lacks

jurisdiction to enter a direct appeal. The Court has

made clear in the analogous context of 28 U.S.C.

1292(a)(1), however, that even an order not styled as the

grant or denial of an injunction is appealable if it (1) has

the “practical effect” of granting or denying an injunction; (2) “might have a ‘serious, perhaps irreparable,

consequence’ ”; and (3) “can be ‘effectually challenged’

only by immediate appeal.” Carson v. American

Brands, Inc., 450 U.S. 79, 84 (1981); see Gulfstream

Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271,

287-288 (1988). In the circumstances presented here,

the district court’s August 15 and 24 orders meet those

standards.

A. This case presents an unusual combination of extraordinary delays in the judicial proceedings followed

by the equally extraordinary expedition of those proceedings on the eve of preparations for the upcoming

election cycle. After Texas enacted the 2013 congressional and State House plans, plaintiffs promptly

amended their complaints to challenge them. But the

trial on the 2013 plans was not held until July 2017, and

the district court did not issue its decisions on those

plans until mid-August 2017, even though Texas had

previously informed the district court that its deadlines

to begin preparations for the 2018 election cycle required that its plans be in place no later than October 1,

2017. See D. Ct. Doc. 1388, at 1-2 (May 1, 2017). 8 By

the time the district court finally ruled, the 2013 plans

(or the 2012 court-ordered plans on which they were

based) had been used for three straight election cycles

(2012, 2014, and 2016).

The district court’s August 15 and August 24 orders

held that the 2013 plans were unlawful and made clear

that those plans would not be used for the upcoming

2018 elections. The court’s orders found that the 2013

congressional and State House plans contained various

“statutory and constitutional violations” and stated that

those violations “must be remedied by either the Texas

Legislature or this Court.” C.J.S. App. 118a; H.J.S.

App. 84a-85a (similar). The court then directed the

Texas Attorney General to advise, within only “three

business days,” whether “the Legislature intends to

Texas advised the district court that pursuant to Texas Election

Code § 14.001 (West 2017), election officials were required to mail

voter election certificates on or after November 15, 2017, but before

December 6, 2017. See D. Ct. Doc. 1388, at 2. The State indicated

that October 1, 2017 was “the last possible date when individual

voter-registration-templates must be provided by the Secretary of

State to each of the 254 county election officials in the State of

Texas.” Id. at 1-2. The State’s primary elections are scheduled for

March 6, 2018.

take up redistricting in an effort to cure these violations.” C.J.S. App. 118a; H.J.S. App. 86a. 9 The court

further directed that “[i]f the Legislature does not intend to take up redistricting,” the court would hold

“hearing[s] to consider remedial plans” on September 5

and 6, 2017. Ibid. The court ordered that, in that event,

“the parties must take immediate steps to consult with

their experts and mapdrawers and prepare statewide

* * * plans that remedy the violations.” Ibid.

In these circumstances, the district court’s orders

were tantamount to injunctive relief. The court’s significant delay, coupled with the impending deadlines and

the remarkably compressed time frame to consider a

possible legislative enactment, placed Texas in a difficult position: because the district court found the existing plans “unlawful” and ordered that they “must be

remedied,” Texas could be quite confident that the district court would not permit it to use those plans for the

2018 elections, even though the court had approved

their use in prior years. Yet that consequence was not

expressly stated in the form of an injunction. Had

Texas been required to wait until the district court entered an express injunction, it would likely have come

too late to afford Texas a reasonable opportunity under

That three-day response period was far shorter than is typically

afforded to a state legislature, which this Court has stated should

be given a “reasonable opportunity” to contemplate a possible legislative remedy before being compelled to proceed to remedial litigation. Lawyer v. Department of Justice, 521 U.S. 567, 576 (1997)

(quoting Wise v. Lipscomb, 437 U.S. 535, 540 (1978) (principal opinion)).

the circumstances for appellate review before deadlines

associated with the 2018 election cycle. 10

B. None of this Court’s decisions compels a different

result. In Gunn v. University Committee to End the

War in Viet Nam, 399 U.S. 383 (1970), this Court held

that it lacked jurisdiction under Section 1253 over a

three-judge district-court order that declared a state

law unconstitutional, but declined to enter an immediate injunction. That case, however, did not involve a

redistricting suit under 28 U.S.C. 2284(a) or the timing

considerations present here, and it cannot be said that

the district court’s liability determination in that case

could only be effectually challenged by immediate appeal. Similarly, in Whitcomb v. Chavis, 403 U.S. 124

(1971), this Court held in a footnote that it lacked jurisdiction under Section 1253 to entertain an appeal from

an interlocutory liability determination in a redistricting case. Id. at 138 n.19; see Whitcomb v. Davis, 403

U.S. 914 (1971) (order dismissing appeal). But that

case, too, did not involve the timing pressures present

here, and the Court did not expressly consider whether

the district court’s liability ruling may have had the

practical effect of an injunction.

We do not suggest that such preliminary deadlines in the election cycle should stand as an obstacle to relief on the merits if the

Court were to find a violation of the VRA or the Constitution and if

the considerations identified in Purcell v. Gonzalez, 549 U.S. 1

(2006) (per curiam), for withholding relief close to an election are

not yet present. As explained in the text, however, the delays and

resulting compressed time frame are relevant for purposes of construing 28 U.S.C. 1253 and 2284(a), which provide for direct review

of injunctions against statewide reapportionment plans to ensure

prompt resolution of challenges to such plans and to accord respect

for acts of a state legislature.

II. THE DISTRICT COURT ERRED IN ITS ANALYSIS OF

INTENTIONAL VOTE DILUTION IN THE 2013 CONGRESSIONAL AND STATE HOUSE PLANS

On the merits, the Court should correct the legal errors underlying the district court’s rulings that the

Texas Legislature engaged in intentional vote dilution in

2013 when it adopted Congressional District 27, and

State House Districts 32, 34, 54, 55, 103, 104, and 105,

without change from the court’s own 2012 interim plans.

The court rested its rulings on determinations that the

State’s original 2011 plans were tainted with “discriminatory intent” and that the Legislature failed to

“cleanse” that intent in enacting its new 2013 plans.

C.J.S. App. 44a. But in deciding whether the 2013 plans

were intentionally discriminatory, the court should have

evaluated the intent of the 2013 Legislature, and should

have applied the familiar principles for discerning the

intent of a legislative body, which include a presumption

of good faith. That presumption should be particularly

strong here, because the Legislature enacted the interim plans adopted by the district court. Viewed under

the correct legal framework, the evidence invoked by

the district court, and discussed by plaintiffs in their

motions to dismiss or affirm in this Court, would not be

sufficient to overcome that strong presumption of good

faith and to establish discriminatory intent.

A. Plaintiffs’ Claims Of Intentional Vote Dilution Require

Them To Show That The 2013 Legislature Acted With A

Discriminatory Racial Purpose

Plaintiffs claim that the 2013 plans (Plans C235 and

H358) intentionally diluted the voting strength of minority voters in several districts in violation of Section

2 of the VRA and the Fourteenth Amendment. The

principles for adjudicating those claims are well established.

1. A legislative enactment may be invalidated on

grounds of intentional discrimination only if the legislature “acted with a discriminatory purpose.” Reno v.

Bossier Parish Sch. Bd., 520 U.S. 471, 481 (1997). “ ‘Discriminatory purpose’ * * * implies more than intent as

volition or intent as awareness of consequences. It implies that the decisionmaker selected or reaffirmed a

particular course of action at least in part ‘because of,’

not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Personnel Adm’r v. Feeney, 442 U.S.

256, 279 (1979) (citation omitted). Thus, “even if a neutral law has a disproportionately adverse effect upon a

racial minority, it is unconstitutional under the Equal

Protection Clause only if that impact can be traced to a

discriminatory purpose.” Id. at 272.

The inquiry into a legislature’s motivation is an “inherently complex endeavor.” Hunt v. Cromartie, 526

U.S. 541, 546 (1999). “Outright admissions of impermissible racial motivation are infrequent.” Id. at 553. More

commonly, “[d]etermining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S.

252, 266 (1977); see Rogers v. Lodge, 458 U.S. 613, 618

(1982) (recognizing that “an invidious discriminatory

purpose” may often be “inferred from the totality of the

relevant facts”) (quoting Washington v. Davis, 426 U.S.

229, 242 (1976)). The determination of a legislature’s

motivation, though guided by legal principles, is ultimately an issue of fact. See Hunt, 526 U.S. at 549 (“The

legislature’s motivation is itself a factual question.”).

In Arlington Heights, this Court set forth several

considerations in analyzing “whether invidious discriminatory purpose was a motivating factor” in a government body’s decisionmaking. 429 U.S. at 266; see Bossier Parish, 520 U.S. at 481 (noting that Arlington

Heights “serve[s] as the framework for examining discriminatory purpose in cases brought under the Equal

Protection Clause”). Under this framework, courts consider (1) whether the “impact of the official action * * *

bears more heavily on one race than another”; (2) “the

historical background of the decision”; (3) “[t]he specific

sequence of events leading up to the challenged decision”; (4) any “[d]epartures from the normal procedural

sequence”; and (5) “[t]he legislative or administrative

history, especially . . . [any] contemporary statements

by members of the decisionmaking body.” Bossier Parish, 520 U.S. at 489 (quoting Arlington Heights, 429

U.S. at 266-268) (brackets in original). This Court has

repeatedly applied this framework to assess legislative

intent in the context of challenges to state redistricting

plans. See Hunt, 526 U.S. at 546-549; Shaw v. Reno, 509

U.S. 630, 644 (1993) (Shaw I); Rogers, 458 U.S. at 618.

In performing this inquiry, the burden rests on the

“plaintiff ” to “establish that the State * * * acted with

a discriminatory purpose.” Bossier Parish, 520 U.S. at

481; cf. Schaffer v. Weast, 546 U.S. 49, 56 (2005) (recognizing that the burden of proof generally rests on the

party alleging a violation of federal law); Voinovich v.

Quilter, 507 U.S. 146, 155-156 (1993) (“Section 2, however, places at least the initial burden of proving an apportionment’s invalidity squarely on the plaintiff ’s

shoulders.”). If, and only if, a plaintiff proves intentional discrimination does the burden shift to the defendant to establish any available defense, such as by

showing that it would have taken the same action for

valid reasons even absent impermissible discrimination.

See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274, 285-286 (1977).

2. The Court has recognized several additional principles relevant to adjudicating claims of unlawful racial

intent in the context of state legislative redistricting.

First, this Court has emphasized in the redistricting

context that courts must accord a “presumption of good

faith [to] legislative enactments.” Hunt, 526 U.S. at 553

(quoting Miller v. Johnson, 515 U.S. 900, 916 (1995)).

The Court has explained that “[f ]ederal-court review of

districting legislation represents a serious intrusion on

the most vital of local functions,” Miller, 515 U.S. at 915,

because legislative apportionment is “primarily the

duty and responsibility of the State,” Shelby County v.

Holder, 133 S. Ct. 2612, 2623 (2013) (quoting Perry v. Perez, 565 U.S. 388, 392 (2012)) (per curiam); see Cooper v.

Harris, 137 S. Ct. 1455, 1463 (2017) (“The Constitution

entrusts States with the job of designing congressional

districts.”). For that reason, “courts must ‘exercise extraordinary caution in adjudicating claims that a State

has drawn district lines on the basis of race.’ ” BethuneHill v. Virginia State Bd. of Elections, 137 S. Ct. 788, 797

(2017) (quoting Miller, 515 U.S. at 916).

Second, this Court has explained that, although inquiry into the effects of a challenged action “may provide an important starting point” for analysis, “official

action will not be held unconstitutional solely because it

results in a racially disproportionate impact.” Arlington Heights, 429 U.S. at 264-266 (citing Davis, 426 U.S.

at 242); see also, e.g., Coleman v. Court of Appeals, 566

U.S. 30, 42 (2012) (plurality opinion). Thus, a State’s

decision to “choose a redistricting plan that has a dilutive impact does not, without more, suffice to establish

that the jurisdiction acted with a discriminatory purpose.” Bossier Parish, 520 U.S. at 487-488; cf. Miller,

515 U.S. at 914 (stating in racial-gerrymandering context that “impact alone” is usually “not determinative,

and the Court must look to other evidence of race-based

decisionmaking”).

Third, this Court has recognized that a finding of intentional discrimination in a prior legislative enactment

is ordinarily insufficient, standing alone, to support an

inference of intentional discrimination in a later enactment. “[P]ast discrimination cannot, in the manner of

original sin, condemn governmental action that is not itself unlawful.” City of Mobile v. Bolden, 446 U.S. 55, 74

(1980) (plurality opinion). Of course, “[t]he historical

background” to a challenged enactment is a relevant

consideration, Arlington Heights, 429 U.S. at 267, including evidence pertaining to events that are “reasonably contemporaneous with the challenged decision,”

McCleskey v. Kemp, 481 U.S. 279, 298 n.20 (1987). But

even when a prior finding of intentional discrimination

was recent, “[t]he ultimate question” under Arlington

Heights must be “whether a discriminatory intent has

been proved in [the] given case”—that is, for the particular challenged enactment. City of Mobile, 446 U.S. at

74 (plurality opinion).

Fourth, this Court’s decisions indicate that, when a

State enacts a new redistricting plan in response to a

judicial order holding a prior plan unconstitutional, the

plaintiff retains the burden of proof in any challenge to

the State’s new plan. This Court has long recognized

that when a federal court has determined that a new apportionment is required, a State “should be given the

opportunity to make its own redistricting decisions so

long as that is practically possible.” Lawyer v. Department of Justice, 521 U.S. 567, 576 (1997); see Wise v.

Lipscomb, 437 U.S. 535, 540 (1978) (principal opinion).

And even when practical necessities dictate the implementation of a court-drawn map in the first instance,

States nonetheless remain “free to replace courtmandated remedial plans by enacting redistricting

plans of their own.” League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 416 (2006) (LULAC) (opinion of Kennedy, J.); see Wise, 437 U.S. at 540 (principal

opinion); Burns v. Richardson, 384 U.S. 73, 85 (1966).

When a State avails itself of that opportunity, “[t]he

new legislative plan * * * will then be the governing

law unless it, too, is challenged and found to violate the

Constitution.” Wise, 437 U.S. at 540 (principal opinion);

accord id. at 548 (opinion of Powell, J., joined by three

other Justices concurring in part and concurring in the

judgment); id. at 550 (Marshall, J., dissenting, joined by

two other Justices) (agreeing with the relevant portion

of the principal opinion); see also Mississippi State

Chapter, Operation PUSH, Inc. v. Mabus, 932 F.2d 400,

408-409 (5th Cir. 1991) (holding that plaintiff had failed

to “establish[] that the Mississippi Legislature” had “a

racially discriminatory purpose” in enacting its legislative remedy for a Section 2 violation).

3. The foregoing principles, taken together, suggest

a further principle. In considering the “historical background” and “specific sequence of events” leading to a

revised legislative action, Arlington Heights, 429 U.S. at

267, a court should afford particular weight to a state legislature’s reliance on a court’s determination that a particular remedy is both necessary and likely sufficient to

cure a legal violation. When, as here, a court has found

that an interim plan is sufficient to redress all likely violations of law, and when the state legislature permanently adopts that plan to replace its original enactment,

the normal presumption of good faith accorded to legislative enactments is heightened by the State’s acceptance of the judicial plan. Courts should operate from

a strong presumption that the state legislature’s adoption of the judicially approved remedy was due to goodfaith compliance efforts rather than sinister motives.

Applying a strong presumption of good faith in this

context would not direct an answer to the intent inquiry

as a matter of law. Even when a state legislature permanently adopts a remedy that a court has provisionally

declared to be lawful, a plaintiff may attempt to prove

that the legislature adopted that remedy not in good

faith, but rather for the purpose of harming racial minorities and perpetuating unlawful discrimination. Cf.

Hayden v. Paterson, 594 F.3d 150, 167 (2d Cir. 2010)

(contemplating the “possibility that a legislative body

might seek to insulate from challenge a law known to

have been originally enacted with a discriminatory purpose”). The legislature’s adoption of a court-ordered

plan cannot immunize a State from all possible liability,

including for intentional wrongdoing when it exists. Cf.,

e.g., LULAC, 548 U.S. at 416 (opinion of Kennedy, J.)

(“Judicial respect for legislative plans * * * cannot justify legislative reliance on improper criteria for districting determinations.”); Weinberger v. Wiesenfeld, 420

U.S. 636, 648 n.16 (1975) (recognizing that courts “need

not * * * accept at face value assertions of legislative

purposes” if “examination of the legislative scheme and

its history demonstrates that the asserted purpose

could not have been a goal of the legislation”). Plaintiffs

should bear a heavy burden, however, in establishing

that a state legislature’s adoption of a court-ordered

plan was intentionally discriminatory.

B. The District Court Incorrectly Presumed Discriminatory Intent And Shifted The Burden Of Proof To The

State

Rather than applying the settled framework for intentional vote-dilution claims, the district court undertook a fundamentally different analysis. The court did

not ask whether plaintiffs had proven that the Legislature, in enacting the 2013 plans, acted with the purpose

of harming minority voters. Instead, the court asked

whether the State had shown that it had removed the

“taint of discriminatory intent” associated with certain

districts in its 2011 plans. C.J.S. App. 38a. 11 The court’s

analysis reflects several legal errors.

1. First, the district court incorrectly assumed that

discriminatory intent associated with old legislation

persists into new litigation unless that prior intent is

confronted and somehow affirmatively extirpated. The

court faulted the Legislature for not undertaking a “deliberative process to ensure that the 2013 plans cured

any taint from the 2011 plans.” C.J.S. App. 40a. The

court concluded that, in light of that failure, “the racially discriminatory intent * * * that it previously

found in the 2011 plans carr[ied] over into the 2013

plans where those district lines remain unchanged.” Id.

The district court briefly recited the Arlington Heights framework in the background of its opinion, see C.J.S. App. 27a, but its

analysis did not follow that framework. The sole arguable application of Arlington Heights appeared in a footnote, in which the district court observed that the “history of discrimination” in Texas

“support[ed]” the court’s findings under its taint analysis. Id. at

38a-39a n.27.

at 46a; see id. at 117a (same); H.J.S. App. 6a (incorporating same analysis).

That presumption of persistent discriminatory intent is inconsistent with the analysis required by this

Court’s decisions. See pp. 26-30, supra. It also makes

little sense. Whether intentional discrimination existed

in enacting the 2013 redistricting plans is a question

about the motives of the 2013 Legislature. Although under Arlington Heights as applied in the redistricting

context, a history of prior discrimination by a state or

local legislative body can be relevant, the central inquiry is whether the legislature that enacted the particular law at issue did so for an impermissible purpose. 12

Legislative intent is not an artifact that “carr[ies] over”

from one law to the next; it must be decided anew with

each successive enactment. See, e.g., City of Mobile,

446 U.S. at 74 (plurality opinion) (inquiring “whether a

In its jurisdictional statement, Texas appears to contend (C.J.S.

25-28) that the district court impermissibly relied on factual findings

about the 2011 Legislature’s intent because claims concerning the

2011 plans were moot. Regardless of whether the claims concerning

the 2011 plans were moot, the district court was not foreclosed, under the Arlington Heights analysis in this redistricting context,

from considering the “historical background of ” and “sequence of

events leading up to” enactment of the 2013 redistricting plans, including whether the 2011 Legislature acted with discriminatory intent. But the pertinent question is whether the 2013 plans were

unlawful, and those plans are entitled to a strong presumption of

validity because the Texas Legislature enacted the court’s own interim plans with little or no change. As explained below, evidence

concerning the 2011 plans alone is not sufficient to overcome that

presumption and establish impermissible intent on the part of the

2013 Legislature, and neither the district court nor plaintiffs in their

motions to dismiss or affirm have identified other evidence that does

so. See pp. 40-44, infra.

discriminatory intent has been proved” as to the particular enactment at issue, because “past discrimination

cannot * * * condemn governmental action that is not

itself unlawful”); cf. Palmer v. Thompson, 403 U.S. 217,

225 (1971) (contemplating that a law invalidated because of improper motive might “be valid” if the legislature “repassed it for different reasons”).

In support of its belief that the discriminatory intent

from 2011 “carr[ied] over” into 2013, the district court

invoked this Court’s decision in Hunter v. Underwood,

471 U.S. 222 (1985). See C.J.S. App. 35a (“With regard

to those areas in Plan C185 and Plan H283 where the

Court found that [the] district lines were drawn with

impermissible motive * * * , Hunter indicates that

those portions of the plans remain unlawful.”). But

Hunter did not involve a subsequent legislative enactment at all. Rather, the question was whether a 1901

provision of the Alabama Constitution, which provided

for the disenfranchisement of persons “convicted of,

among other offenses, ‘any crime . . . involving moral

turpitude,’ ” was invalid because it had been adopted

with the purpose of disenfranchising black voters. 471

U.S. at 223. In defending the constitutionality of that

provision, Alabama urged that the passage of time, coupled with intervening judicial rulings narrowing the

predicate crimes giving rise to disenfranchisement, had

vitiated any intentional discrimination.

This Court rejected that proposition, explaining that

the prior judicial invalidation of “[s]ome of the more blatantly discriminatory selections” of crimes (including

“miscegenation”) did not cure the intentional discrimination motivating other then-surviving provisions.

Hunter, 471 U.S. at 233. But Hunter specifically contemplated that a different analysis would apply if the

challenged provisions had been reenacted at a later

time, and reserved the question whether the challenged

provision “would be valid if enacted today without any

impermissible motivation.” Ibid.; see City of Cleburne

v. Cleburne Living Ctr., 473 U.S. 432, 465 n.17 (1985)

(Marshall, J., concurring in the judgment in part and

dissenting in part) (describing Hunter as “h[olding]

that extant laws originally motivated by a discriminatory purpose continue to violate the Equal Protection

Clause, even if they would be permissible were they

reenacted without a discriminatory motive”); Cotton v.

Fordice, 157 F.3d 388, 391 (5th Cir. 1998) (noting that

Hunter “left open the possibility that by amendment, a

facially neutral provision * * * might overcome its odious origin”).

Consistent with that understanding of Hunter, several courts of appeals have recognized that, when a

State reenacts a particular voting provision that was intentionally discriminatory when first enacted, the ultimate focus in any subsequent litigation must be the intent of the reenacting legislature, not the original one.

See Hayden, 594 F.3d at 166-167 (addressing felondisenfranchisement law); Johnson v. Governor, 405 F.3d

1214, 1223-1224 (11th Cir.) (en banc) (same), cert. denied, 546 U.S. 1015 (2005); Cotton, 157 F.3d at 391-392

& n.7 (same); Chen v. City of Houston, 206 F.3d 502,

520-521 (5th Cir. 2000) (addressing racial-gerrymandering claim), cert. denied, 532 U.S. 1046 (2001). Those

courts also have rejected the proposition that prior intent “remains legally operative” unless and until some

affirmative contrary showing is made. Johnson, 405

F.3d at 1223; see Hayden, 594 F.3d at 166-167 (quoting

and citing Johnson with approval); accord Cotton, 157

F.3d at 392 (reaffirming that plaintiff was required to

show that the “current version” of the law was “adopted

out of a desire to discriminate”) (emphasis added). 13

The district court declared that the “most relevant case” supporting its analysis was Chen v. City of Houston, supra, but that

decision is fully consistent with the above-stated principles. C.J.S.

App. 35a; cf. id. at 35a-39a. In Chen, the plaintiffs alleged that the

City’s 1997 districting plan was a racial gerrymander insofar as it

“substantially maintained the borders of previous plans” from 1991,

1993, and 1995 in which race had allegedly predominated. 206 F.3d

at 513. The Fifth Circuit explained that, although “evidence of intent garnered from [those] prior plans” was relevant, “the state of

mind involved in the prior plans [was] not of itself what is precisely

and directly the ultimate issue before the [c]ourt in this case.” Id.

at 521. Rather, the court recognized that the “state of mind of the

reenacting body” controls the analysis, and observed that the “intervening reenactment with meaningful alterations may render the

current law valid” even if the prior law was unconstitutional. Ibid.

The court also applied a “presumption in favor of the Council’s good

faith,” id. at 520, and ultimately found that race had not predominated either in 1997 or in the prior years at issue.

The district court also invoked Kirksey v. Board of Supervisors,

554 F.2d 139 (5th Cir.) (en banc), cert. denied, 434 U.S. 968 (1977),

which reasoned that the “benign nature” of a new redistricting plan

“cannot insulate the redistricting government entity from the existing taint” of a prior “intentional and purposeful discriminatory denial of access.” Id. at 146-147; see C.J.S. App. 33a n.34, 45a. But

Kirksey dates from the pre-City of Mobile era in which the Fifth

Circuit had concluded that a constitutional vote-dilution claim could

be proven by either discriminatory purpose or discriminatory effects. Cf. Jones v. City of Lubbock, 727 F.2d 364, 369, 377-378 (5th

Cir. 1984) (describing history). And to the extent “th[e] [Kirksey]

court determined that a [constitutional] voting dilution case did not

necessarily require intent where a political system demonstrably

continued the effects of historical discrimination,” the Fifth Circuit

later rejected that approach, recognizing that a constitutional votedilution claim must “satisfy the purpose standard generally applicable in equal protection cases.” Id. at 377.

2. In imposing a legal obligation on the Legislature

to “ensure that the 2013 plans cured any taint from the

2011 plans,” C.J.S. App. 40a, the district court also effectively shifted the burden of proof to Texas. As explained above, the burden rests on the “plaintiff [s]”

to “establish that the State * * * acted with a discriminatory purpose.” Bossier Parish, 520 U.S. at 481.

Although the court did not expressly state that it was

shifting the burden of proof, its conclusions that “[t]he

discriminatory taint was not removed by the Legislature’s enactment of the Court’s interim plans,” C.J.S.

App. 46a (emphasis added), and that “the Legislature

did not engage in a deliberative process to ensure that

the 2013 plans cured any taint from the 2011 plans,” id.

at 40a (emphasis added), rest on the evident assumption

that it was the State’s obligation to disprove discriminatory intent in 2013 rather than plaintiffs’ obligation to

prove it. 14 In shifting that burden, the district court

overrode the strong “presumption of good faith” that

the State’s enactments should have enjoyed in these circumstances. Miller, 515 U.S. at 916; see p. 27, supra.

The district court suggested that, absent a burden on

Texas to show it has “removed” its prior bad intent, the

2013 plans would be “insulate[d]” from challenge and

plaintiffs would have “no remedy” for any “discrimination or unconstitutional effects” in those plans. C.J.S.

App. 44a-45a & n.45. That is incorrect: plaintiffs here

could have attempted to prove their case in the same

The district court’s burden-shifting was invited by some plaintiffs, who argued that the “State has the burden [in the litigation] to

prove that its chosen remedy cures all of the defects found by the

Court” in the 2011 plan. D. Ct. Doc. 1525, at 49 (July 31, 2017)

(MALC post-trial brief ); see id. at 21, 40-42.

way as all other similarly situated plaintiffs in redistricting cases—namely, by establishing that the 2013

Legislature enacted the 2013 plans for impermissible

racial purposes. And to do that, because the Legislature adopted court-ordered remedial plans, plaintiffs

should be required to adduce particularly persuasive

evidence in order to surmount the presumption that the

Legislature acted lawfully. But the possibility that a

legislature might act with nefarious motives in enacting

a court-approved plan cannot justify relieving plaintiffs

of their burden to show that those motives exist. 15

C. This Court Should Reject The Basis For The District

Court’s Findings Of Intentional Discrimination

It was only by relying on the flawed premises described above that the district court reached its conclusion that the 2013 plans were the unlawful product of

intentional discrimination. Although the determination

of legislative motive is a “factual question,” Hunt, 526

U.S. at 549, this Court retains “full power to correct a

court’s errors of law,” including any “legal mistake[s]”

underlying factual findings. Cooper, 137 S. Ct. at 14641465, 1474; see LULAC, 548 U.S. at 427 (“Where ‘the

ultimate finding of dilution’ is based on ‘a misreading of

the governing law’ * * * there is reversible error.”)

The district court’s “insulat[ion]” concern also reflects its conflation of the concepts of discriminatory intent and unlawful votedilutive effect. Although success on plaintiffs’ intentional votedilution claims would require proof that the 2013 Legislature acted

for a discriminatory purpose, plaintiffs’ Section 2 “results” claims

require no such showing. See pp. 4-5, supra. Thus, as Texas has

acknowledged, the fact that a re-enacting legislature does not act

with unlawful intent does not foreclose the possibility that “impermissible discriminatory effect may be carried over * * * from one

version of a law to another.” C.J.S. 17.

(quoting Johnson v. De Grandy, 512 U.S. 997, 1022

(1994)). This Court should correct those legal errors.

1. Application of a strong presumption of good faith is

appropriate in this case

The circumstances of this case confirm the soundness of applying a strong presumption that the Legislature did not act with an impermissible racial purpose in

adopting the 2013 redistricting plans.

First, the 2013 Legislature enacted plans that were

either identical (for the congressional plan) or nearly

identical (for the State House plan) to the interim plans

that the district court ordered to be used for the 2012

elections. A legislature’s adoption, entirely or substantially without amendment, of plans that have received

judicial approval indicates the legislature’s reliance on

the district court’s factual and legal determinations that

those plans are likely lawful.

Second, in approving the 2012 interim plans, the district court expressly considered each of plaintiffs’ challenges under this Court’s Perry decision and concluded

that they either were “insubstantial” or had no “likelihood of success.” Perry, 565 U.S. at 394-395. The threejudge district court’s approval of the districts that were

unchanged from the 2011 plan to the 2012 interim plan

was based on extensive evidentiary proceedings, including a ten-day trial in 2011; a three-day hearing in 2011

regarding the first set of interim maps; a two-day hearing in 2012 concerning the revised set of interim maps

on remand from Perry; and the court’s review of posttrial briefing from the nine-day preclearance trial in the

D.C. district court. C.J.S. App. 380a. The district

court’s evaluation of plaintiffs’ claims under Perry, and

its determination that the 2012 interim plans were law-

ful under that standard, gave the Legislature good reason to believe that the court’s 2012 interim plans were a

lawful basis for the 2013 plans.

As to the congressional plan, the district court found

that CD27 likely did not violate Section 2 of the VRA

because the court had restored CD23 as a Latino

opportunity district. C.J.S. App. 421a. With respect to

CD35, the court found that race had not predominated

in its creation and that the district would not fail strict

scrutiny in any event. Id. at 409a-415a. The court likewise stated that in preserving the unaltered districts in

the State House plan, it was “following the Supreme

Court’s direction to leave undisturbed any district that

is free from legal defect.” H.J.S. App. 303a (citing

Perry, 565 U.S. at 393-394). The court thus adopted the

2012 interim plans only after considering, albeit preliminarily, the merits of all pending VRA and constitutional

challenges.

Third, the district court’s 2012 interim plans made

numerous ameliorative changes to other districts, which

supported the Legislature’s conclusion that the interim

plans had likely cured any defects in the 2011 plans.

The interim congressional plan made significant

changes to nine congressional districts, which included

restoring CD23 as a Latino opportunity district. C.J.S.

App. 417a-421a. The court concluded that the restoration of CD23 “substantially addresse[d]” any Section 2

violation involving Latino voters in South and West

Texas, including those residing in Nueces County

(CD27). Id. at 421a. After that change, there were at

least eleven congressional districts in the 2012 interim

plan in which minority voters had the opportunity to

elect their candidates of choice, as opposed to only ten

such districts in the 2011 plan. Id. at 297a, 399a.

Similarly, in the interim State House plan, the district court made “substantial[]” changes to 21 State

House districts. H.J.S. App. 314a. The number of minority opportunity districts in the State House plan was

thereby increased from 45 or 46 in the 2011 map to at

least 50 in the 2013 map. See 11-cv-1303 Docket entry

No. 79-2, at 8 (D.D.C. Oct. 25, 2011) (comparing numbers in 2011 map to those in benchmark pre-2011 map);

H.J.S. App. 308a-309a (noting that 2012 interim plan

“offset” any “retrogression” in the 2011 plan).

Fourth, the court-ordered 2012 plans were created

as compromise maps acceptable to both the State and to

several plaintiffs. C.J.S. App. 6a, 368a; see D. Ct. Doc.

660 (Feb. 16, 2012) ( joint advisory filed by defendants

and by the Texas Latino Redistricting Task Force

plaintiffs proposing interim congressional plan); D. Ct.

Doc. 668 (Feb. 21, 2012) (same for interim State House

plan). 16 That some (although not all) plaintiffs approved

of the interim plans further supports the reasonableness of the Legislature’s belief that those plans were

lawful.

2. Neither the district court nor plaintiffs’ filings to

date in this Court have identified sufficient evidence

to rebut the strong presumption of good faith

The district court’s orders and the plaintiffs’

jurisdictional-stage filings in this Court do not point to

evidence that would be sufficient to rebut the strong

Although the Texas Latino Redistricting Task Force plaintiffs

had alleged that the 2011 State House and congressional plans “dilut[ed] Latino voting strength statewide,” D. Ct. Doc. 68, ¶ 21 (July

25, 2011), those plaintiffs brought no challenges to the 2013 congressional plan, and as to the 2013 State House plan those plaintiffs challenged only a single district (HD90, which was modified in 2013 from

the district court’s interim plan). C.J.S. App. 12a-13a.

presumption of good faith that applies to the 2013 Legislature’s re-adoption of the unchanged districts from

the district court’s interim plan. The district court relied on its assessment that the “Legislature did not

adopt the [2012 interim] plans with the intent to adopt

legally compliant plans free from discriminatory taint,”

C.J.S. App. 40a, but rather as a “litigation strategy designed to insulate the 2011 or 2013 plans from further

challenge,” id. at 41a. Plaintiffs endorse that rationale

in their filings in this Court. See 17-586 Mot. to Dismiss

12, 21 n.9; 17-626 MALC Mot. to Dismiss 29. But those

assertions appear not to rest on evidence, but rather on

a misunderstanding of the law.

To the extent Texas adopted the 2013 plans with a

view to resolving existing litigation against the 2011

plans, it is unclear why the district court regarded that

strategy as inherently pernicious. An intent to end litigation, without more, is not an intent to discriminate.

Indeed, the best way to end litigation is to adopt a redistricting plan that complies with the Voting Rights

Act and the Constitution. And if a federal court has provisionally determined that a particular action is unlawful

and imposes an interim remedy, and if a legislature permanently adopts that remedy in lieu of continuing to contest the lawfulness of the original action, the State’s acceptance of the judicial plan presumptively furthers—

not frustrates—Congress’s goal in enacting the VRA of

ameliorating unlawful discrimination.

Moreover, even when a State replaces a judicial remedy without fully adopting it, this Court’s decisions require that federal courts treat such plans with deference. See pp. 28-29, supra. It follows that a State that

enacts a court-approved plan in order to obviate a need

for litigation concerning prospective compliance should

receive, at a minimum, the same deference. Were the

law otherwise, every state legislative remedy undertaken against the backdrop of redistricting litigation

would be presumptively improper, in contravention of

this Court’s “presumption of good faith” for state legislative enactments, Miller, 515 U.S. at 915, and its encouragement of state legislative remedies, Wise, 437

U.S. at 540 (principal opinion). Cf. Ricci v. DeStefano,

557 U.S. 557, 581 (2009) (recognizing value of “voluntary

compliance” in Title VII context).

In any event, the district court did not identify the

evidence that it believed supported its assertion that

the 2013 Legislature acted with an intent to discriminate rather than an “intent to adopt legally compliant

plans.” C.J.S. App. 40a. Rather, the court’s statement

appears to rest on its mistaken belief that the Legislature was under an affirmative obligation to undertake a

“deliberative process to ensure that the 2013 plan cured

any taint from the 2011 plans,” ibid., and an ensuing inference that the Legislature’s failure to discharge that

obligation was proof of ill motive. But to the extent that

the 2013 Legislature relied on the district court’s legal

and factual judgments rather than second-guessing

them, such reliance is more naturally understood as a

sign of good faith. Indeed, the Legislature’s refusal to

adopt significant changes is consistent with a legislative

intent to avoid creating (even inadvertently) new violations of the VRA.

The district court also cited evidence that the Legislature’s counsel, Jeff Archer, advised legislators that

the district court’s 2012 findings were preliminary and

therefore not “full determinations” on the merits of

every claim. C.J.S. App. 43a; see 17-586 Mot. to Dismiss

21 (relying on same evidence). But the district court’s

orders on the 2012 interim plans were, at a minimum,

highly relevant in assessing Texas’s legal obligations and

the likely merits of plaintiffs’ claims. The fact that the

Legislature knew that the court-ordered interim maps

were not based on a final adjudication of plaintiffs’ claims

concerning the 2011 plans, and yet adopted those maps

anyway, can quite reasonably be understood as reflecting the Legislature’s judgment that the court-ordered

maps provided the best evidence available as to what remedial plans would comply with federal law. 17 But in any

event, the non-final nature of the district court’s determinations underlying its interim plans is not, without

more, affirmative evidence of discriminatory intent.

The district court also observed that the 2013 Legislature had “steadfast[ly] refus[ed]” to consider the possibility of drawing new “coalition” districts, which the

district court had earlier found “could be required” by

the VRA. C.J.S. Pet. App. 40a; cf. p. 10 n.5, supra. But

the Legislature may have believed that the necessary

factual predicate, including proof of cohesive voting

among Hispanic and African-American voters, did not

exist to require drawing new coalition districts. This

Court had stated in Perry that if the district court, in

adopting its 2011 interim plans, had set out to create a

Texas’s post-trial briefing before the district court cited several pieces of record evidence consistent with this understanding.

See, e.g., JX-10.4 at 26 (Representative Drew Darby, Chairman,

House Select Committee on Redistricting) (“[T]he interim maps

represent the District Court’s best judgment as to * * * fully legal

and constitutional redistricting plans.”); JX-13.4 at 151 (Representative Travis Clardy, Member, House Select Committee on Redistricting) (“[I]nterim means interim, I understand that, but it’s

a good, fair map drawn by three hard-working impartial federal

judges who are very well acquainted with the law. Don’t you think

it’s reasonable that * * * we use those maps?”).

minority coalition district, “it had no basis for doing so.”

565 U.S. at 399. The district court also did not include

any new coalition districts in its 2012 interim plans. And

the district court ultimately rejected plaintiffs’ claims

that the Legislature should have created additional coalition districts in 2013. See H.J.S. App. 7a, 9a-12a, 14a,

16a, 20a-22a, 24a-26a, 85a; C.J.S. App. 49a-51a, 53a-85a.

Finally, the district court noted that the 2013 Legislature “pushed the redistricting bills through quickly in

a special session,” C.J.S. App. 40a, which began on May

27, 2013, and ended on June 25, 2013. But the Governor

convened a special session only because the Legislature

had ended its regular session in May 2013 without any

new redistricting plans to replace the 2011 plans, for

which the D.C. district court had denied preclearance.

And because the Legislature sits in regular session for

only 140 days every two years, see Tex. Const. art. III,

§§ 5(a), 24(b), a special session was necessary if the Legislature was to adopt new redistricting plans before the

2014 elections. The “quick[ness]” of the special session

may reflect only that “no [special] session shall be of

longer duration than thirty days.” Id. § 40.

III.

THE DISTRICT COURT ERRED IN CONCLUDING

THAT CONGRESSIONAL DISTRICT 35 IS AN

UNCONSTITUTIONAL RACIAL GERRYMANDER

A. This Court applies a two-step analysis in determining whether a State has violated the Equal Protection Clause through racial gerrymandering. At the first

step, plaintiffs must prove that “race was the predominant factor motivating the legislature’s decision to place

a significant number of voters within or without” a particular district. Alabama Legislative Black Caucus v.

Alabama, 135 S. Ct. 1257, 1267 (2015) (citation omitted).

At the second step, the burden shifts to the State to

“prove that its race-based sorting of voters serves a

‘compelling interest’ and is ‘narrowly tailored’ to that

end.” Cooper, 137 S. Ct. at 1464 (quoting Bethune-Hill,

137 S. Ct. at 800). When a State invokes compliance

with the Voting Rights Act as the “compelling interest”

justifying its race-based apportionment, it must show

that it had “ ‘good reasons’ ” for concluding that its actions were required by the VRA. Ibid. (quoting Alabama, 135 S. Ct. at 1274).

B. The district court erred in finding a racial gerrymander in CD35. As an initial matter, the 2013 Legislature adopted CD35 in its present form in 2013 because

that district had received judicial endorsement in the

court-ordered interim congressional plan. Thus, the

“predominant” consideration in establishing the boundaries of CD35 in 2013 was that they matched the district

provisionally deemed lawful by the three-judge court.

In any event, the State had “good reasons” to believe

that the VRA required it to draw CD35 in 2011 and

maintain it in 2013. Cooper, 137 S. Ct. at 1464. The district court’s own decision in 2012 concluded that Texas

had good reasons for drawing CD35 as it did. Although

the district court provisionally concluded in 2012 that

race did not predominate in drawing the district, it also

found that “[p]laintiffs [had not] demonstrated a substantial likelihood that CD35 would fail a strict scrutiny

analysis [even] if strict scrutiny applies.” C.J.S. App.

415a. The court noted that Texas had defended CD35

in the preclearance proceedings as a “minority opportunity district,” id. at 411a, and it observed that CD35

had been designed to have a “Hispanic majority” with

“ ‘above 50 percent of [Hispanic citizen voting age population],’ ” ibid. (citation omitted). Indeed, the court

counted CD35 among the seven “Latino opportunity

districts” that it perceived as necessary to satisfy plaintiffs’ Section 2 “results” claims in South and West

Texas. Id. at 409a. Although the district court’s approval of CD35 in 2012 was provisional, that endorsement provided at least “breathing room” for Texas to

conclude, in 2013, that CD35 addressed a VRA need and

that maintaining it would not violate the Equal Protection Clause. Cooper, 137 S. Ct. at 1464 (citation omitted).

In addition to the district court’s endorsement of

CD35 in 2012, there were other “good reasons” for Texas

to believe that Section 2 of the VRA required drawing

CD35 as a Hispanic-majority district. It is uncontested

that Section 2 required no fewer than seven Latino opportunity districts in South and West Texas. C.J.S.

App. 112a & n.85, 126a-127a, 176a. And the State had

reason to believe that CD35 would satisfy Gingles; mapdrawers and members of the Legislature in 2011 were

aware of substantial Hispanic populations in Austin and

San Antonio, and were furnished with analyses of racially polarized voting (RPV) showing information

about polarization statewide and in each district, including District 35. See C.J.S. Supp. App. 67a-69a, 201a,

366a, 467a-469a, 481a-482a. Indeed, one group of plaintiffs proposed and supported the creation of CD35 as

“an appropriate § 2” Latino opportunity district during

the 2011 redistricting process. C.J.S. App. 174a; see

C.J.S. Supp. App. 158a (describing CD35 as a “[n]ew

Hispanic VRA district”); C.J.S. Supp. App. 152a, 316a317a, 319a-320a.

C. The district court’s ruling that CD35 failed “strict

scrutiny review” because it was “not narrowly tailored to

the State’s professed interest in avoiding § 2 liability,”

C.J.S. App. 113a, 177a, rests on misunderstandings of

Section 2’s requirements, the trial record, and the strictscrutiny standards articulated by this Court.

As explained (pp. 4-5, supra), to make a prima facie

showing of vote dilution under Section 2, a plaintiff must

prove, inter alia, that the majority group would vote

“sufficiently as a bloc to enable it * * * usually to defeat

the minority’s preferred candidate.” Thornburgh v.

Gingles, 478 U.S. 30, 51 (1986) (citation omitted). The

district court concluded that that precondition could not

be met for CD35 because “[e]vidence from county-level

elections” in Travis County “shows substantial Anglo

crossover voting,” such that “the Anglo majority does

not usually defeat the minority-preferred candidate.”

C.J.S. App. 175a. But only a small share (21%) of the

total population of Travis County is included in CD35.

Id. at 181a. The district court did not address whether

voting patterns were racially polarized within the particular portion of Travis County included in CD35, nor

did it address whether voting patterns were racially polarized across CD35 as a whole (i.e., including both areas inside and outside Travis County). And the district

court cited no precedent in support of its apparent assumption that a State necessarily lacks good reasons to

draw a Section 2 district any time that a district includes

(or, as here, partially overlaps with) a community in

which racial polarization is not apparent. To the contrary, this Court has recently reaffirmed that “the basic

unit of analysis for racial gerrymandering claims * * *

is the district,” and has stated that “[c]oncentrating on

particular portions [of the district] in isolation may obscure the significance of relevant districtwide evidence.” Bethune-Hill, 137 S. Ct. at 799-800.

Applying a “holistic analysis,” Bethune-Hill, 137 S. Ct.

at 800, the record confirms that it would be inappropriate

to deem CD35 an improper Section 2 district solely because of a purported lack of racially polarized voting in

Travis County. See D. Ct. Doc. 681-3, at 7 (Feb. 28,

2012). The total population of CD35 is 698,488. Ibid. The

total Hispanic population of CD35 is 438,819 persons,

more than two-thirds of whom reside outside Travis

County. Ibid. The total Anglo population of CD35 is

175,726 persons, nearly three-quarters of whom reside

outside Travis County. Ibid. Within CD35, the Anglo

population from Travis County is only 45,272 persons.

Ibid. Thus, even assuming a showing that Anglos in the

covered portion of Travis County did not engage in racially polarized voting, that would fail to establish that

Anglos districtwide would not vote so as “usually to defeat the minority’s preferred candidate.” Gingles, 478

U.S. at 51. And it is uncontroverted that racially polarized voting existed throughout the counties making up

the majority of CD35. See C.J.S. App. 21a (stating that

the existence of racially polarized voting outside Travis

County was “essentially undisputed” and “supported by

all the expert testimony in the case”).

In any event, even if the absence of racially polarized

voting in Travis County meant that CD35 was not required to be drawn as a Section 2 district, the district

court erred in finding that CD35 failed strict scrutiny

for that reason. This Court’s precedents afford a State

“ ‘breathing room’ to adopt reasonable compliance

measures that may prove, in perfect hindsight, not to

have been needed.” Cooper, 137 S. Ct. at 1464 (citation

omitted). Here, because the State had, at a minimum,

“good reason to think that all the ‘Gingles preconditions’ [were] met,” “so too it ha[d] good reason to believe

that § 2 require[d] drawing a majority-minority district.” Id. at 1470.

CONCLUSION

For the foregoing reasons, the Court should reject

the bases for the district court’s findings of intentional

discrimination as to eight unchanged districts (CD27,

HD32, HD34, HD54, HD55, HD103, HD104, and

HD105), and it should reverse the finding of a racial gerrymander as to the remaining unchanged district

(CD35).

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

JOHN M. GORE

Acting Assistant Attorney

General

JEFFREY B. WALL

EDWIN S. KNEEDLER

Deputy Solicitors General

GREGORY B. FRIEL

Deputy Assistant Attorney

General

JEFFREY E. SANDBERG

Assistant to the Solicitor

General

BONNIE I. ROBIN-VERGEER

Attorney

FEBRUARY 2018

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.