Motion for divided argument — Greg Abbott, Governor of Texas, et al., Appellants v. Shannon Perez, et al.

IN THE SUPREME COURT OF THE UNITED STATES

_______________

Nos. 17-586, 17-626

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

v.

SHANNON PEREZ, ET AL.

_______________

ON APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

_______________

MOTION FOR DIVIDED ARGUMENT

_______________

Pursuant to Rules 21 and 28.4 of the Rules of this Court, the

Solicitor General, on behalf of the United States, respectfully

moves that oral argument for appellants in these consolidated cases

be divided between the appellants and the United States, which has

filed a brief as appellee in support of appellants.

This Court

has scheduled oral argument for April 24, 2018, and has allocated

a total of one hour for oral argument.

The other appellees have

filed a motion to enlarge the time for argument by 20 minutes, to

be divided equally between each side.

2

If one hour is allowed for argument, the Solicitor General

respectfully requests that appellants be allocated 20 minutes of

argument time and that the United States be allocated 10 minutes

of argument time.

for

enlargement

In the event that the other appellees’ motion

of

time

is

granted,

the

Solicitor

General

respectfully requests that appellants be allocated 25 minutes of

argument time and that the United States be allocated 15 minutes

of

argument

time.

Counsel

for

appellants

agree

that

these

divisions of time would be appropriate and therefore consent to

this motion.

1.

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 panel of the United States

District Court for the Western District of Texas adopted in 2012,

after that court had enjoined use of the State’s prior 2011

redistricting plans pending separate preclearance proceedings in

the United States District Court for the District of Columbia.

In

the decisions under review, the district court in Texas invalidated

various 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

3

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

has

filed

a

brief

as

appellee

supporting appellants and taking the position that the Court has

appellate jurisdiction under 28 U.S.C. 1253.

The United States is

an appellee in this Court because it intervened in district court

to assert claims that the State’s 2011 redistricting plans were

enacted

with

racially

discriminatory

Section 2 of the VRA, 52 U.S.C. 10301.

intent

in

violation

of

The United States has not

brought any claims challenging the 2013 congressional or State

House plans.

The United States’ brief principally argues that the district

court committed errors of law in finding that the 2013 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, which were identical to

districts contained in the district court’s own 2012 interim

remedial plans.

The brief explains that legislatively enacted

redistricting plans may be invalidated on grounds of intentional

vote dilution only if the plaintiffs show that the legislature

acted with a discriminatory purpose, and in adjudicating such a

challenge, courts must accord a “presumption of good faith [to]

legislative enactments.”

Hunt v. Cromartie, 526 U.S. 541, 553

4

(1999) (citation omitted).

The brief argues that this presumption

of good faith is heightened where, as here, the district court

ordered the use of interim remedial plans that it found to redress

all likely violations of law, and the state legislature in turn

permanently

adopted

the

court-ordered

plans

to

replace

its

original enactments.

The United States’ brief also explains that the district court

erred

in

finding

Congressional

District

unconstitutional racial gerrymander.

35

(CD35)

to

be

an

The brief explains that the

predominant consideration in setting CD35’s boundaries in 2013 was

not race, but rather whether it matched the boundaries that the

district court provisionally deemed lawful in 2012.

And the brief

argues that the State had good reasons to believe that the VRA

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

that the district court itself found in 2012 that CD35 aided in

complying with the State’s obligations under the VRA.

3.

The United States has a substantial interest in the

Court’s resolution of this case.

The United States, through the

Attorney General, has primary responsibility for enforcing the

VRA.

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

The United States accordingly has

a substantial interest in the proper interpretation of the VRA and

of the related constitutional protection against the unjustified

use of race in redistricting.

present

the

federal

Because the United States would

government’s

distinct

perspective

on

the

5

appropriate standards for adjudicating claims of intentional vote

dilution and racial gerrymandering in the context of a state

legislature’s

adoption

of

a

court-ordered

remedial

plan,

the

United States’ participation in oral argument is likely to assist

the Court in its consideration of this case.

When this case was previously before this Court on review of

an initial set of court-ordered interim redistricting plans in

2011, the United States participated in oral argument as amicus

curiae.

See Perry v. Perez, 565 U.S. 388 (2012) (Nos. 11-713, 11-

714, 11-715).

The United States has participated in oral argument

in other cases involving vote-dilution challenges under the VRA,

see, e.g., Bartlett v. Strickland, 556 U.S. 1 (2009) (No. 07-689);

League of United Latin American Citizens v. Perry, 548 U.S. 399

(2006) (Nos. 05-204, 05-254, 05-276, 05-439), or concerning the

constitutionality

of

districts

alleged

to

constitute

racial

gerrymanders, see, e.g., Cooper v. Harris, 137 S. Ct. 1455 (2017)

(No. 15-1262); Alabama Legislative Black Caucus v. Alabama, 135

S. Ct. 1257 (2015) (Nos. 13-895, 13-1138); Hunt v. Cromartie, 526

U.S. 541 (1999) (No. 98-85).

4.

The other appellees have filed a motion to enlarge the

total argument time to one hour and 20 minutes, to be divided

equally between each side.

The United States takes no position on

that motion.

In the event that the motion for enlargement of time

is

the

granted,

Solicitor

General

respectfully

requests

that

6

appellants be allocated 25 minutes of argument time, and that the

United States be afforded the remaining 15 minutes of time that

would otherwise be afforded to appellants.

In the event that the

motion for enlargement of time is denied, the Solicitor General

respectfully requests that appellants be allocated 20 minutes of

argument time and that the United States be allocated 10 minutes

of argument time.

We are authorized to represent that counsel for

appellants agree with these allocations and that they therefore

consent to this motion.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

MARCH 2018