Respondents Brief — Greg Abbott, Governor of Texas, et al., Appellants v. Shannon Perez, et al.
Supreme Court briefMar 28, 2018
Ask Donna
What actually matters in this document.
Text
No. 17-626
IN THE
GREG ABBOTT, GOVERNOR OF TEXAS, ET AL.,
v.
Appellants,
SHANNON PEREZ, ET AL.,
Appellees.
On Appeal from the United States District Court
for the Western District of Texas
BRIEF FOR APPELLEES OTHER THAN THE
UNITED STATES
(STATE HOUSE DISTRICTS)
David Richards
RICHARDS, RODRIGUEZ &
SKEITH, LLP
816 Congress Ave., Ste. 1200
Austin, TX 78701
Counsel for Appellees Shannon
Perez, et al.
Allison J. Riggs
Jaclyn A. Maffetore
SOUTHERN COALITION FOR
SOCIAL JUSTICE
1415 W. Highway 54, Ste. 101
Durham, NC 27707
Counsel for Appellees Texas
State Conference of
NAACP Branches, et al.
Pamela S. Karlan
Counsel of Record
Jeffrey L. Fisher
David T. Goldberg
STANFORD SUPREME COURT
LITIGATION CLINIC
559 Nathan Abbott Way
Stanford, CA 94305
(650) 725-4851
karlan@stanford.edu
Jose Garza
Martin Golando
Michael Moran
LAW OFFICE OF JOSE GARZA
7414 Robin Rest Drive
San Antonio, TX 78209
Counsel for Appellee Mexican
American Legislative Caucus
Additional Counsel Listed on Inside Cover
Robert Notzon
LAW OFFICE OF ROBERT S.
NOTZON
1507 Nueces Street
Austin, TX 78701
Victor L. Goode
NAACP
4805 Mt. Hope Drive
Baltimore, MD 21215
Gary L. Bledsoe
POTTER BLEDSOE, LLP
316 West 12th Street
Ste. 307
Austin, TX 78701
Additional Counsel for
Appellees Texas State
Conference of NAACP
Branches, et al.
Luis R. Vera, Jr.
LAW OFFICES OF LUIS ROBERTO
VERA, JR.
1325 Riverview Towers
111 Soledad
San Antonio, TX 78205
Counsel for Appellee League of
United Latin American
Citizens
Nina Perales
Ernest I. Herrera
MEXICAN AMERICAN LEGAL
DEFENSE AND EDUCATIONAL
FUND
110 Broadway Street, Ste. 300
San Antonio, TX 78205
Counsel for Appellees Texas
Latino Redistricting Task
Force, et al.
i
QUESTIONS PRESENTED
1. Whether this Court lacks jurisdiction over the
present appeal.
2. Whether, if this Court has jurisdiction, it should
affirm the district court’s ruling that Texas violated
the Fourteenth Amendment and Section 2 of the
Voting Rights Act, 52 U.S.C. § 10301, when its
Legislature intentionally minimized minority voting
strength in drawing seven Texas House of
Representatives districts in Nueces, Bell, and Dallas
Counties.
3. Whether, if this Court has jurisdiction, it should
affirm the district court’s ruling that Texas violated
the results standard in Section 2 of the Voting Rights
Act, 52 U.S.C. § 10301(b), with respect to the Texas
House of Representatives districts drawn in Nueces
County.
4. Whether, if this Court has jurisdiction, it should
affirm the district court’s ruling that Texas’s use of
race in crafting the boundaries of Texas House of
Representatives District 90 in Tarrant County
violated the Fourteenth Amendment.
ii
RULE 29.6 STATEMENT
The Mexican American Legislative Caucus, Texas
House of Representatives (MALC) is an official caucus
of the Texas House of Representatives. MALC is also
incorporated as a nonprofit, nonpartisan 501(c)(6)
corporation titled Mexican American Legislative
Policy Council. MALC has no parent corporation or
publicly held company owning 10% or more of the
corporation’s stock.
The League of United Latin American Citizens
(LULAC) is a 501(c)(3) organization. LULAC has no
parent company and issues no stock.
The Texas State Conference of NAACP Branches
is a nongovernmental corporation. It has no parent
corporations and no stock.
The Texas Latino Redistricting Task Force is an
unincorporated association. The Texas Latino
Redistricting Task Force has no parent corporations
and no stock.
iii
TABLE OF CONTENTS
QUESTIONS PRESENTED ......................................... i
RULE 29.6 STATEMENT ........................................... ii
TABLE OF AUTHORITIES ........................................ v
BRIEF FOR APPELLEES ........................................... 1
JURISDICTION........................................................... 1
INTRODUCTION ........................................................ 1
STATEMENT OF THE CASE..................................... 2
Redistricting after the 2010 census ...................... 3
2011: Designing the challenged districts in
Nueces, Bell and Dallas Counties......................... 4
2012: The interim remedy ................................... 14
2013: Enacting the current state house
apportionment ..................................................... 18
Proceedings below ............................................... 25
SUMMARY OF ARGUMENT ................................... 27
ARGUMENT .............................................................. 29
I.
The Court should dismiss this appeal for
lack of jurisdiction ............................................... 29
II. In the alternative, this Court should affirm
the district court’s finding that Plan H358
intentionally dilutes minority voting
strength................................................................ 35
A. The challenged districts originated in
2011 legislation that was tainted by
discriminatory motivations and not in
a court-imposed remedy................................ 35
iv
B. The Legislature’s 2013 reenactment of
the challenged districts was
purposefully discriminatory ......................... 40
C. Plaintiffs in intentional vote dilution
cases need not prove that it would be
possible to draw additional majorityminority districts .......................................... 47
III. The configuration of the districts in Nueces
County violates Section 2’s “results” test ........... 50
IV. HD90 in Tarrant County is an
unconstitutional racial gerrymander ................. 52
CONCLUSION .......................................................... 56
v
TABLE OF AUTHORITIES
Page(s)
Cases
Abbott v. Perez,
No. 17A245 (U.S. Sept. 12, 2017)........................ 27
Ala. Legislative Black Caucus v. Alabama,
135 S. Ct. 1257 (2015) ......................................... 52
Anderson v. City of Bessemer City,
470 U.S. 564 (1985) ................................... 41-42 43
Bartlett v. Strickland,
556 U.S. 1 (2009) ........................................... 48, 49
Bear Lake & River Waterworks &
Irrigation Co. v. Garland,
164 U.S. 1 (1896) ................................................. 40
Carson v. Am. Brands, Inc.,
450 U.S. 79 (1981) ......................................... 30, 33
Chavis v. Whitcomb,
307 F. Supp. 1362 (S.D. Ind. 1969) ..................... 32
City of Pleasant Grove v. United States,
479 U.S. 462 (1987) ............................................. 48
City of Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989) ............................................. 53
City of Richmond v. United States,
422 U.S. 358 (1975) ............................................. 48
Community Nutrition Inst. v. Block,
749 F.2d 50 (D.C. Cir. 1984) ............................... 37
Cooper v. Harris,
137 S. Ct. 1455 (2017) ....................... 31, 41, 42, 53
vi
Garza v. County of Los Angeles,
918 F.2d 763 (9th Cir. 1990) ............................... 49
Georgia v. Ashcroft,
539 U.S. 461 (2003) ............................................... 8
Gill v. Whitford,
No. 16-1161 .......................................................... 31
Goldstein v. Cox,
396 U.S. 471 (1970) ................................. 29, 30, 34
Gunn v. Univ. Comm. to End the War in
Viet Nam,
399 U.S. 383 (1970) ........................... 29, 30, 31, 32
Harris v. McCrory,
No. 1:13-cv-00949-WO-JEP (M.D.N.C. Feb.
5, 2016) ................................................................ 32
Hazelwood Sch. Dist. v. United States,
433 U.S. 299 (1977) ............................................. 47
Hunt v. Cromartie,
526 U.S. 541 (1999) ............................................. 41
Hunter v. Underwood,
471 U.S. 222 (1985) ....................................... 44, 45
Johnson v. De Grandy,
512 U.S. 997 (1994) ............................................. 47
Keyes v. Denver Sch. Dist. No. 1,
413 U.S. 189 (1973) ....................................... 39, 47
LULAC v. Perry,
548 U.S. 399 (2006) ....................................... 44, 47
Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803) ............................... 33
Miller v. Johnson,
515 U.S. 900 (1995) ............................................. 52
vii
Mitchell v. Donovan,
398 U.S. 427 (1970) ............................................. 29
Ne. Fla. Chapter of the Associated Gen.
Contractors of Am. v. City of Jacksonville,
508 U.S. 656 (1993) ............................................. 40
N.C. State Conference of the NAACP v.
McCrory,
831 F.3d 204 (4th Cir. 2016), cert. denied,
137 S. Ct. 1399 (2017) ......................................... 43
Perry v. Perez,
565 U.S. 388 (2012) (per curiam) .................passim
Oneida County v. Oneida Indian Nation of
N.Y. State,
470 U.S. 226 (1985) ............................................. 40
Rogers v. Lodge,
458 U.S. 613 (1982) ...................... 41, 42, 44-45, 48
Shaw v. Hunt,
517 U.S. 899 (1996) ............................................. 52
Shaw v. Reno,
509 U.S. 620 (1993) ........................... 25, 52, 53, 54
Shelby County v. Holder,
133 S. Ct. 2612 (2013) ......................................... 26
Sole v. Wyner,
551 U.S. 74 (2007) ............................................... 38
Texas v. United States,
887 F. Supp. 2d 133 (D.D.C. 2012),
vacated and remanded, 133 S. Ct.
2885 (2013) ............................... 14-15, 16-17, 18-19
Thornburg v. Gingles,
478 U.S. 30 (1986) ........................................passim
United States v. Fordice,
505 U.S. 717 (1992) ........................................ 46-47
viii
United States v. Virginia,
518 U.S. 515 (1996) ............................................. 53
Univ. of Tex. v. Camenisch,
451 U.S. 390 (1981) ....................................... 37, 38
Vill. of Arlington Heights v. Metro. Hous. Dev.
Corp.,
429 U.S. 252 (1977) ................................. 36, 43, 44
Whitcomb v. Chavis,
403 U.S. 124 (1971) ....................................... 31, 32
White v. Regester,
412 U.S. 755 (1973) ....................................... 29, 42
Whitford v. Gill,
No. 3:15-cv-00421-bbc, 2017 WL 2623104
(W.D. Wis. Feb. 22, 2017).................................... 31
Constitutional Provisions
U.S. Const. amend. XIV......................................passim
Statutes
28 U.S.C. § 1253..................................................passim
28 U.S.C. § 1292(a)(1) .......................................... 30, 33
Voting Rights Act of 1965, 52 U.S.C. § 10301 et
seq. ................................................................passim
§ 2, 52 U.S.C. 10301 .....................................passim
§ 3(c), 52 U.S.C. § 10302(c)...................... 25, 26, 35
§ 4(b), 52 U.S.C. § 10303(b) ................................. 26
§ 5, 52 U.S.C. § 10304 ......................................... 14
2011 Tex. Sess. Law Serv. ch. 1271 (H.B. 150)
(“Plan H283”) ................................................passim
2013 Tex. Sess. Law Serv., 1st Called
Sess. ch 2 (S.B. 3) (“Plan H358”)..................passim
ix
Rules and Regulations
Fed. R. Civ. P. 52(a) ....................................... 28, 41, 42
Other Authorities
73 Am. Jur. 2d Statutes § 271 (Westlaw
2018) .................................................................... 40
U.S. Census Bureau, Voting Age Population by
Citizenship and Race (CVAP),
https://tinyurl.com/CVAPData (last visited
Mar. 19, 2018)........................................................ 6
Wigmore, Henry, A Treatise on the AngloAmerican System of Evidence in Trials at
Common Law (3d ed. 1940)................................. 39
Wright, Charles Alan, et al., Federal Practice
and Procedure (2d ed. 2002) .......................... 37-38
BRIEF FOR APPELLEES
Appellees (other than the United States) in the
above-captioned case respectfully request that the
Court dismiss this appeal for lack of jurisdiction under
28 U.S.C. § 1253 or, alternatively, that the Court
affirm the district court’s order.
JURISDICTION
Appellants invoke this Court’s jurisdiction under
28 U.S.C. § 1253. Brief for Appellants (“Texas Br.”) 3.
As explained below, this Court lacks jurisdiction at
this time. See infra pages. 29-34.
INTRODUCTION
Appellants (“Texas” or the “State”) and the United
States profoundly mischaracterize what this case is
about. They would have this Court regard the Texas
House of Representatives (“state house”) districts at
issue here as “court-drawn” or “court imposed,” Texas
Br. i, 9, 28, 32, 33, 34, 35, 39, 41, 45, 64, or part of a
court’s “own” plan, Brief for the United States as
Appellee in Support of Appellants (“U.S. Br.”) 24. To
the contrary: As Texas itself insisted the last time this
dispute came to the Court, these districts reflect the
State’s “choices”—not any court’s, Br. for Appellants at
18, Perry v. Perez, 565 U.S. 388 (2012) (Nos. 11-713 et
al.).
Six of the districts—HD32 and HD34 in Nueces
County; HD54 and HD55 in Bell County; and HD104
and HD105 in Dallas County—were drawn by the
Texas Legislature in 2011 without any judicial
involvement and were reenacted, without change, by
the Legislature in 2013. The district court’s
preliminary decision in 2012 to leave those districts in
2
place when it drew interim remedial districts
elsewhere in the State did nothing to change those
districts’ fundamental character. A seventh district,
HD103 in Dallas County, was drawn by the
Legislature in 2011 without any judicial involvement,
was left unchanged by the district court in 2012, and
was reenacted in 2013 with immaterial changes
proposed by a legislator, H.J.S. App. 23a. And even the
State admits that the eighth district at issue, HD90 in
Tarrant County, is of Texas’s own devising. See Texas
Br. 64, 68. 1
The court below found that both the original
enactment and the reenactment of the districts at
issue here was infected by purposeful racial
discrimination. But the court has not yet enjoined
Texas from using the districts. Texas filed this appeal
before the court could hold a remedial hearing.
Nothing in 28 U.S.C. § 1253 gives this Court power to
hear this premature appeal. But if this Court does
reach the merits, it should reject Texas’s attempt to
cement discriminatory districts into place.
STATEMENT OF THE CASE
Based on a “voluminous record,” J.A. 117a (Order
Denying Motion for Entry of Judgment under Rule
54(b) (Jan. 5, 2017)), the court below issued a series of
lengthy opinions and orders setting forth detailed
“H.J.S. App.” refers to the Appendix to the Jurisdictional
Statement in No. 17-626. “C.J.S. App.” refers to the appendix to
the Jurisdictional Statement in No. 17-586. “M.D.A. App.” refers
to the Appendix to the Motion to Dismiss or Affirm of Appellees
Mexican American Legislative Caucus, et al., in No. 17-626. “Task
Force M.D.A. App.” refers to the Appendix to the Motion to
Dismiss or Affirm as to House District 90 in No. 17-626.
1
3
findings of fact concerning what happened in the
relevant time period—the biennium from 2011 to
2013.
Redistricting after the 2010 census
The 2010 census showed that Texas’s population
had grown by over four million since 2000. Perry v.
Perez, 565 U.S. 388, 390 (2012) (per curiam). That
growth was not evenly distributed around the State.
See M.D.A. App. 2a. Thus, to comply with one person,
one vote, Texas had to redraw the districts from which
state representatives are elected. Perry, 565 U.S. at
390.
The district court described the context in which
the Legislature undertook the post-2010 round of
redistricting as one “of strong racial tension and
heated debate about Latinos, Spanish-speaking
people, undocumented immigration and sanctuary
cities, and the contentious voter ID law.” C.J.S. App.
302a. In all four counties relevant here, members of
racial or ethnic minority groups accounted for most or
all of the population growth. In Nueces County, the
growth “was attributable to Hispanics, as both
African-American and Anglo population declined.”
M.D.A. App. 91a. In Bell County, “more than 70% of
the growth” was attributable to an increase in the
minority population. Id. 278a. In Dallas County, the
minority population grew by 350,000, while the Anglo
population “decreased by over 198,000.” Id. 222a. And
in Tarrant County, “almost 89% of the growth was
non-Anglo.” Id. 257a, 266a.
Nonetheless, Republican legislators “were very
resistant to creating any new minority opportunity
districts.” M.D.A. App. 4a-5a. They worried any such
4
districts would likely elect Democrats. Id. As a result,
“[d]espite the massive minority population growth,”
the Legislature “not only failed to create any new
minority opportunity districts, it reduced the number
of minority opportunity districts.” H.J.S. App. 191a.
Its plan, enacted into law as 2011 Tex. Sess. Law Serv.
ch. 1271 (H.B. 150), is known as Plan H283.
2011: Designing the challenged districts in
Nueces, Bell and Dallas Counties
The configuration of each of the challenged
districts in Nueces, Bell, and Dallas Counties has
remained unchanged (with the exception of an
immaterial change to one district in Dallas County)
since they were first drawn by the Legislature in Plan
H283. The district court made extensive findings
regarding the districts’ configurations, the legislative
intent behind those configurations, and the
consequences of those configurations for the voting
power of minority citizens.
1. Nueces County. “In both 2000 and 2010, Nueces
County was majority Hispanic [in total] population
and majority HCVAP [Hispanic citizen voting-age
population].” M.D.A. App. 91a. Under the plan in
effect prior to 2011, the county (whose largest city is
Corpus Christi) elected representatives from three
districts—two located completely within the county
and one shared with adjoining counties. Id. 89a-90a. It
was “undisputed that Nueces County had two
benchmark Latino opportunity districts” under the
pre-2011 plan. H.J.S. App. 126a. Although those
districts had previously elected Latino voters’
candidates of choice, they had elected candidates
opposed by a majority of Latino voters in 2010. See
M.D.A. App. 90a-91a.
5
Because Nueces County’s population grew
relatively slowly between 2000 and 2010 compared to
the rest of Texas, it became possible during the 2011
redistricting to place the entire population of the
county within two districts, rather than giving it a
share of three. M.D.A. App. 89a, 91a. Early in 2010, a
staff member of the Texas Legislative Council wrote to
the chief of staff to the Speaker of the state house:
“Corpus—Two seats only; three R’s. And worse[,] one
of the seats will probably have to be more Hispanic
than the other and probably elect a D.” Id. 92a. With
respect to the two benchmark districts that were
majority-Latino, the Speaker mentioned to potential
Latino candidates that “one of their seats was not
going to be there for the next session.” Id. 91a-92a.
The district court found that it would in fact have
been possible to draw two majority HCVAP districts
entirely within Nueces County. See H.J.S. App. 44a
(pointing to a plan with districts that were 55.2% and
59.9% HCVAP). But “[r]ather than exploring” this
possibility, the Legislature instead “drew one safe
district for Hispanics and one safe district” for an
Anglo incumbent, id. 59a. Along the way, the
mapdrawers justified their refusal to draw a second
Latino opportunity district by invoking a different
measure of Hispanic population “because [that
measure] was lower [than HCVAP] (and lower than
50%),” id. at 134a (emphasis added), thus making it
seem as if the Latino community could not satisfy the
6
first precondition for creating an opportunity district
under Thornburg v. Gingles, 478 U.S. 30, 50 (1986). 2
As compared to the number of residents who
would be included in two ideally populated districts,
Nueces County was overpopulated by roughly 5000
people. But rather than splitting the excess population
between the county’s districts, the Legislature, with
“[n]o explanation” for its decision, underpopulated
HD32—the safe Anglo seat—by 563 people, producing
a district where 46.3% of the citizens of voting age
were Latino. M.D.A. App. 101a. It then overpopulated
HD34—the majority Latino district—by 5,512 people,
creating a district where Latinos constituted 65.9% of
voting-age citizens. Id. 3
In assessing why Texas had assigned so many
more voters to the heavily Latino district, rather than
allocating the overage more evenly between the two
districts as an alternative proposal had suggested, the
court below found that “[t]he only potential
The mapdrawers “felt” they could “offset” the retrogression
caused by eliminating HD33, a benchmark Latino opportunity
district in Nueces County, “by creating a new Hispanic
opportunity district in a different part of the State.” M.D.A.
App. 96a. But the two districts in which they increased the Latino
population provided no offset because they were “already
performing for Latinos.” See id.
2
CVAP percentages are calculated using five-year rolling
American Community Survey (ACS) data from the Census
Bureau. See U.S. Census Bureau, Voting Age Population by
Citizenship and Race (CVAP), https://tinyurl.com/CVAPData
(last visited Mar. 19, 2018). Using 2005-2009 data, HD32 was
44.2% HCVAP, and HD34 was 64.6% HCVAP; using 2008-2012
data, both districts’ HCVAP percentages had increased, showing
that Latinos formed an increasing share of Nueces County’s
potential electorate. See M.D.A. App. 101a.
3
7
explanation given by Defendants” at trial—“that
mapdrawers sought to draw HD34 as a district that
would perform reliably for Latino voters”—was
“demonstrably not the reason for the population
disparity.” H.J.S. App. 255a n.81.
Instead, the evidence showed that the
mapdrawers—“including specifically” Todd Hunter,
an Anglo incumbent from Nueces County—drew the
districts in that county to “undermine Latino voting
strength.” H.J.S. App. 136a. The “convoluted line”
between HD32 and HD34, id. 132a (quoting the United
States’s post-trial brief), included ten split precincts.
This “indicat[ed] that mapdrawers were likely using
race to assign population since accurate political data
is not available below the precinct level.” Id. 136a.
That “jagged boundary line” included a “strategic”
boot-shaped “extension” that resulted in the safe Anglo
district’s capturing a Latino area that was “lowperforming” with “low turnout.” M.D.A. App. 102a.
Meanwhile, the extension “removed [from the safe
Anglo district] two potential Hispanic rivals” who had
legislative experience—one of whom was a
Republican. M.D.A. App. 102a; see id. 90a. In short,
the Legislature “intentionally packed Hispanic voters”
into a safe Latino district “to minimize their number
and influence” in Nueces County’s other district.
H.J.S. App. 136a.
The district court also found that the
configuration of HD32 and HD34 violated the “results”
8
test of Section 2 of the Voting Rights Act. See H.J.S.
App. 44a-61a. 4
As already described, the district court found it
was possible to draw two majority-Latino districts, see
H.J.S. App. 44a, thus satisfying the first precondition
for a “results” claim under the framework established
in Gingles, 478 at 50-51. The district court also found
the second and third requirements to be met, given the
“high levels of racially polarized voting in Nueces
County.” H.J.S. App. 48a-49a. And turning to the
totality-of-the-circumstances inquiry, the district
court emphasized Texas’s “long history” of votingrelated discrimination, including “intentional vote
dilution in the Legislature’s enactment of the 2011
plan,” id. 51a, and the “continuing pattern of
disadvantage” suffered by Latinos in Nueces County
that hindered their ability to participate effectively in
the political process, id. 52a-53a.
The district court expressly left open the question
of an appropriate remedy. H.J.S. App. 61a. With
respect to the Section 2 “results” violation, it pointed
to the potential tradeoff this Court had identified in
Georgia v. Ashcroft, 539 U.S. 461, 480 (2003), between
fewer but safer districts on the one hand and more, but
more competitive, districts on the other. H.J.S.
App. 60a. It then advised appellees to consider
whether they would press their claim for a second
opportunity district if the two districts had to be drawn
Regardless of the intent with which a jurisdiction
apportions its seats, an apportionment plan violates Section 2’s
“results” test “if, based on the totality of circumstances,” minority
citizens show that they “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).
4
9
entirely within Nueces County (rather than crossing
county lines to create districts with a higher
percentage of HCVAP, as appellees were seeking to
have the court order). Id. 60a-61a.
2. Bell County. Killeen, Bell County’s largest city,
has a diverse, and growing, majority-minority
population. M.D.A. 283a; see H.J.S. App. 181a-82a.
Under the pre-2011 apportionment, the entire city,
save a “minuscule, 200-resident split,” was located
within HD54. Id. 270a. The pre-2011 HD54 also
contained all of Burnet and Lampasas Counties.
M.D.A. App. 277a.
After the 2010 census, HD54 was overpopulated
by nearly 29,000 people. M.D.A. App. 278a. “Minority
population growth [had] accounted for more than 70%
of the growth in Bell and Lampasas Counties” since
2000. Id. Because Bell and Burnet Counties were now
too populous to share a district, Plan H283 removed
Burnet County and its 42,000 residents from HD54.
Id.; H.J.S. App. 270a.
To make up for the removed population, the
Legislature needed to add 13,000 people to HD54.
H.J.S. App. 270a. Minority members of the Legislature
introduced plans “that would have kept [Killeen] more
whole” than did Plan H283, “but they were rejected.”
Id. 19a. “[I]nstead of adding voters to the existing core
of HD54, which already contained almost the entire
City of Killeen,” id. 179a, the Legislature “removed
more population from HD54”—splitting off more than
30,000 Killeen residents, “about two-thirds of whom
were minorities,” and assigning them to “already
heavily Anglo HD55.” Id. 270a-71a. To compensate for
that change, legislators moved “47,000 mostly Anglo
persons [in] southwest Bell County” from HD55 to
10
HD54. Id. 270a. The upshot was that voters of color in
Killeen found themselves split between two majorityAnglo CVAP districts (HD54 and HD55). See id. 183a.
The primary architect of the lines in Bell County
was HD54 incumbent Representative Jimmie Don
Aycock, an Anglo. See M.D.A. App. 277a-78a. In his
testimony at the 2014 trial, Aycock claimed that the
lines were the result of a political compromise with the
incumbent in HD55, who was also an Anglo. See id.
278a. He also attempted to explain why the
Legislature had rejected alternative plans that would
have kept Killeen together in one district. See H.J.S.
App. 182-83a. For example, he objected to one such
plan (Plan H201) “because it had a ‘land bridge.’” Id.
The court found this objection “pretextual” in light of
the fact that Aycock had voted for Plan H283, which
itself has land bridges elsewhere. Id. Aycock also
admitted that he tried to avoid creating a majorityminority coalition district because it “would have
probably got me unelected.” M.D.A. App. 279a.
Ultimately,
the
court
rejected
Aycock’s
explanations for splitting Killeen as “not credible,”
M.D.A. App. 283a, as well as “unconvincing and
pretextual,” H.J.S. App. 19a. It found that “the
decision to split Killeen and the minority community
within it (removing minorities from HD54 and moving
in Anglos) was to ensure that HD54 and HD55
remained Anglo-majority and to make HD54 less
likely to perform for minority voters.” Id. Accordingly,
the court concluded that in adopting Plan H283, the
Legislature engaged in “intentional vote dilution in
Bell County.” Id. 183a.
The court also found that the new configurations
of HD54 and HD55 “exacerbated the existing
11
population deviations” between the districts. H.J.S.
App. 271a. And the State offered no legitimate
explanation for doing so. See id. Rather, the deviations
were “exceedingly political and racial”: Legislators
“intentionally used race in a way that would
overwhelm the remaining Latino voters of HD54 with
the new influx of Anglo voters while also stranding a
large portion of Killeen’s minority voters in the already
heavily Anglo HD55,” diluting the minority
community’s potential political strength. Id. The
population deviations were thus another way the
Legislature illegitimately reduced minority political
strength. See id.
3. Dallas County. Although the minority
population in Dallas County had increased by almost
350,000 in the decade from 2000 to 2010, its Anglo
population had decreased by almost 200,000, and the
county had “lost population relative to the state as a
whole.” M.D.A. App. 222a. As a result, Dallas County
was allocated fourteen state house seats rather than
the sixteen it had held under the benchmark plan. Id.
Under the benchmark plan, there had been two
Latino opportunity districts in the county: HD103 and
HD104. H.J.S. App. 166a-67a. A third district, HD105,
was among those “on track to provide minority
opportunity.” Id. 166a. In 2008, it came within 19 votes
of electing the minority-preferred candidate to the
state house, and in seven of nine statewide elections
that year, the minority’s preferred candidate received
a majority of the vote within HD105. See M.D.A.
App. 220a-21a.
Although the county’s minority population had
substantially increased relative to the Anglo
population, the Legislature drew no new minority
12
opportunity districts within the county in 2011.
M.D.A. App. 222a. Instead, it rejected a number of
proposals that would have created districts without
Anglo majorities. See id. 237a-40a. And it redrew
HD105 to ensure that the district would not perform
for minorities. See H.J.S. App. 170a. As a result, under
Plan H283, Anglos controlled nearly 60% of Dallas
County’s house seats with only one-third of its
population. Id. 166a.
With respect to the northeastern part of the
county, the district court found insufficient proof that
the Legislature had acted for racially discriminatory
(rather than partisan) reasons. H.J.S. App. 169a-70a.
But the court concluded that in western Dallas
County, the district lines for HD103, HD104, and
HD105 were drawn “in a racially discriminatory
manner to intentionally dilute minority voting
strength.” Id. 170a.
The district court based this finding on
considerable evidence. First, HD103 and HD104—the
county’s only majority-Latino opportunity districts
under Plan H283—were two of the most overpopulated
districts in the county. M.D.A. App. 43a; H.J.S.
App. 261a. Ryan Downton, who assisted the
Legislature in drawing the districts in Dallas County,
did not address Representative Anchia’s objection that
his district (HD103) was unnecessarily overpopulated,
and Downton did not confer with Representative
Alonzo of HD104 at all. H.J.S. App. 170a, 263a.
Second, the “bizarre configuration” of district lines
for all three districts, M.D.A. App. 244a-45a; see also
J.A. 454-58, suggested that minorities had been taken
from HD105 and packed into HD103 and HD104.
HD103 and HD104 had two of the lowest perimeter-to-
13
area compactness scores in the 2011 plan. M.D.A. App.
244a. HD105’s design was also “a drastic change from
the benchmark.” H.J.S. App. 262a. The court noted an
“HD103 arm” reaching west into HD105, scooping up
heavily concentrated Latino populations in Irving.
M.D.A. App. 228a-29a. It also described a “jagged,
bizarrely shaped” protrusion extending from HD105
into HD104, which took “disproportionately Anglo”
populations from HD104 and added them to HD105.
Id. 230a-31a; see also H.J.S. App. 262a (describing
HD105’s protrusion into HD104 as “the least Hispanic
channel that could have been drawn”).
Third, the manner in which the districts were
drawn also defied traditional, nonracial districting
criteria. The boundary of HD105, for instance, “breaks
up numerous communities of interest,” dividing the
cities of Grand Prairie and Irving. M.D.A. App. 230a.
The district lines also split a significant number of
precincts, including ten in HD103’s arm into HD105
and seven that diverted Latino populations in Grand
Prairie into HD104. Id. 228a, 241a. Residents of split
precincts
excluded
from
HD105
were
“disproportionately Hispanic”; those included in
HD105 were “disproportionately Anglo.” Id. 231a.
Downton, the principal architect of the Dallas
County districts, admitted at trial that he “drew lines
and split precincts based on race to put Anglos in
HD105” and to “put Latinos in HD103 and HD104.”
M.D.A. App. 255a. And the fact that western Dallas
County had so many split precincts led the Court to
conclude that the mapdrawers were relying on race to
manipulate district lines and enhance the political
performance of the districts for Anglos. H.J.S. App.
14
171a; see id. 136a (explaining that “accurate political
data is not available below the precinct level”). 5
Downton claimed to have packed minority voters
into HD103 and HD104 to comply with the Voting
Rights Act, but the district court deemed Downton’s
statement “not credible.” H.J.S. App. 171a-72a. The
court noted in particular that “there [was] no
indication that any election analysis was done” to see
whether HD103 and HD104 needed additional
minority population in order to remain opportunity
districts. Id. 172a. In light of the other evidence, the
court determined that Downton’s reliance on the
Voting Rights Act was “superficial” and “in bad faith.”
Id. 171a-72a. It found that “the true motive” of the
district configurations “was to dilute Latino voting
strength in west Dallas County by unnecessarily
placing Latinos in HD103 and HD104”—that is,
packing them into those districts to “waste Latino
votes”—“while simultaneously making HD105 more
Anglo.” Id. 172a. Based on this “compelling” evidence,
id. 263a, the court ruled that HD103, HD104, and
HD105 had been intentionally designed to dilute
Latino voting strength.
2012: The interim remedy
1. Because Texas was then a jurisdiction covered
by the preclearance obligation of Section 5 of the
Voting Rights Act, 52 U.S.C. § 10304, Texas could not
immediately implement the legislative apportionment
embodied in Plan H283. It sought preclearance from
As the United States argued at trial, splitting precincts
also disproportionately depresses voter turnout among minority
voters. See U.S. Proposed Findings of Fact and Conclusions of
Law ¶ 119 (Oct. 30, 2014) (ECF No. 1278).
5
15
the U.S. District Court for the District of Columbia.
See Texas v. United States, 887 F. Supp. 2d 133, 138
(D.D.C. 2012) (three-judge court), vacated and
remanded on other grounds, 133 S. Ct. 2885 (2013).
At roughly the same time, a number of plaintiffs—
including appellees here—filed suit in the U.S. District
Court for the Western District of Texas challenging
Plan H283 on a variety of constitutional and statutory
grounds. The district court held off adjudicating their
claims, awaiting decision from the D.D.C. on the
State’s preclearance request. See H.J.S. App. 318a.
When it became clear that the D.D.C. would not
preclear Plan H283 in time for the beginning of the
2012 election cycle, the district court had to
“implement[] an interim plan so that the 2012
elections [could] go forward.” Id. 302a. To meet that
obligation, in the fall of 2011 the district court “dr[e]w
an ‘independent map’ following ‘neutral principles that
advance the interest of the collective public good.’” See
Perry, 565 U.S. at 396 (quoting the district court). That
map was known as Plan H302.
2. That independent, court-drawn map no longer
has anything to do with this case. Texas immediately
challenged Plan H302. In its appeal to this Court,
Texas argued that the district court should instead
have deferred, to the maximum extent possible, to the
policy decisions embodied in the Legislature’s Plan
H283.
This Court agreed. It held that the district court
had erred in drawing its own plan. Perry, 565 U.S. at
392, 396. The Court remanded the case to the district
court and ordered that court to defer to “the State’s
policy judgments” and to “take guidance from the
State’s recently enacted plan”—that is, from
16
Plan H283—“in drafting an interim plan.” Id. at 393.
With respect to Fourteenth Amendment or Section 2
infirmities, the district court could depart from the
Legislature’s Plan H283 only where the challengers
had demonstrated a likelihood of success on the
merits. Id. at 394.
3. This Court issued its decision on January 20,
2012, at which point the district court had just over a
month to respond before the 2012 election cycle got
underway. Adhering to this Court’s directive, the
district court abandoned its independently drawn
map. After submissions from the parties, the court
adopted an interim remedy, denominated Plan H309.
Order at 1 (Feb. 28, 2012) (ECF No. 682). The court
emphasized that the “interim plan is not a final ruling
on the merits of any claims asserted by the Plaintiffs
in this case or any of the other cases consolidated with
this case.” Id. at 1-2. Three weeks later, on March 19,
2012, the court issued a twelve-page opinion
“explain[ing] that plan.” H.J.S. App. 301a.
Even on the preliminary record then before it, the
district court found sufficient evidence of racial
discrimination that it needed to “substantially” alter
21 of the 150 state house districts in Plan H283. H.J.S.
App. 314a. 6
Here are some examples of districts the court
found it necessary to alter: HD117 in southwestern
San Antonio had “target[ed] low-turnout Latino
precincts” to aid an incumbent who “wanted to get
more Anglo numbers.” H.J.S. App.307a; see also
Texas, 887 F. Supp. 2d at 172 (describing how “Texas
It made “minimal[]” alterations to an additional seven
districts. H.J.S. App. 314a.
6
17
tried to draw a district that would look Hispanic, but
perform for Anglos”). HD149 in Harris County had
been 62% minority CVAP in the benchmark plan. See
H.J.S. App. 312a. But the Legislature “chose to
dismantle” this diverse, multiracial district that was
electing the State’s “first and only VietnameseAmerican legislator.” Id. 311a. And in El Paso County,
the district court found that the line drawn between
HD77 and HD78 was “bizarre, even for a legislative
district.” H.J.S. App. 313a. HD77 sported a set of “‘deer
antler’ protrusions” designed to “grab predominantly
Latino neighborhoods,” id., thereby protecting the
incumbent in HD78 who was not the choice of the
Latino community.
The 2012 opinion disposed of nearly all appellees’
other claims—including those concerning the districts
now before this Court— in a single sentence, reciting
that the court had “preliminarily” found no likelihood
of success on appellees’ remaining “Section 2 and
constitutional challenges,” H.J.S. App. 303a. With
respect to Nueces County, the court offered an
additional one-sentence explanation of why the State
could eliminate one of the benchmark Latino
opportunity districts: “Because Nueces County does
not have a majority [Spanish surname voter
registration (“SSVR”)] as a whole, the choice to remove
one district required the elimination of one of the
Hispanic ability districts.” Id. 308a. 7
The district court later explained that the State’s earlier
“insist[ence],” H.J.S. App. 134a, on using SSVR—rather than on
CVAP, with respect to which Nueces County was majority
Hispanic—as the exclusive measure of potential Latino voting
strength reinforced the court’s finding of discriminatory purpose.
See infra pages 38-39.
7
18
The result of the preliminary ruling was that
every one of the districts currently at issue in Nueces,
Bell, or Dallas Counties was “left undisturbed from the
enacted plan” and “configure[d]” in an “identical
manner” to its configuration in the Legislature’s
Plan H283. See H.J.S. App. 303a & n.4 (capitalization
altered). The only reason these districts needed to be
included in the court’s interim remedial order was that
because they had not yet been precleared, only a
federal court order could allow them to go into effect.
The district court took pains to “emphasize the
preliminary and temporary nature” of its interim
order, stressing that “except for the fact that PLAN
H309 sets the districts for the 2012 elections, nothing
in this opinion reflects this Court’s final determination
of any legal or factual matters.” H.J.S. App. 303a,
314a. As the court later explained, it had been clear
from the outset that its “analysis had been expedited
and curtailed” and that its conclusions could “be
revised upon full analysis.” Id. 319a.
Six months after the court issued the order
adopting interim Plan H309, the D.D.C. held that
Plan H283 was retrogressive. Texas, 887 F. Supp. 2d
at 166. Accordingly, that court did not then resolve the
question whether the plan was also purposefully
discriminatory. But it pointed to “record evidence that
cause[d] concern” and “strongly suggest[ed]” that the
retrogression “may not have been accidental.” Id. at
177-78.
2013: Enacting
apportionment
the
current
state
house
1. In 2013, in the wake of the decisions by the
court below and the D.D.C. and while Texas’s appeal
19
of the denial of preclearance was still pending, the
Governor called a special session of the Legislature “to
adopt the [district court’s] interim map” as a
permanent apportionment. H.J.S App. 5a.
It is important to remember that the “interim
map” involved two distinct classes of districts. First,
the court below had redrawn 28 of Plan H283’s
districts, 21 of them “substantially,” in light of its
preliminary finding that the existing configurations
violated federal law. H.J.S App. 313a-14a. Those
districts—none of which is now before this Court—can
fairly be described as court-drawn or court-imposed.
Second, the court had left 122 districts “exactly the
same as those in the enacted plan”—that is, identical
to the districts the Legislature had drawn in 2011 as
part of Plan H283. Id. 314a. As to these districts, the
court had simply “defer[red]” to “the legislative choices
and district lines” made in Plan H283. Id. 356a n.42. 8
The district court found that the Legislature was
aware that pending challenges to the districts that had
originated in Plan H283 and had remained unchanged
since 2011 were likely to continue. H.J.S. App. 356a. It
emphasized that “[t]he Legislature’s own attorney,
Jeff Archer, advised them” of this probability. Id.; see
also id. 358a & n.45.
The district court found that the decision
nevertheless to retain the original configuration of
these “undisturbed” districts, H.J.S. App. 303a, “was
not an attempt to adopt plans that fully complied with
the VRA and the Constitution”; rather, “it was a
The district court’s findings “concerning the intent of the
2013 Legislature” are laid out in its order on Plan C235. See
H.J.S. App. 6a.
8
20
litigation strategy designed to insulate” the districts
“from further challenge, regardless of their legal
infirmities.” Id. 355a. The Legislature hoped that by
repealing the 2011 plan, the State could somehow wipe
out the evidentiary significance of any findings of
discriminatory intent in the initial design of the
districts because it could then argue that that evidence
applied only to a plan that no longer existed. Id. 357a58a. The Legislature could then immediately reenact
exactly the same districts—this time without
discussion or debate or consideration of alternatives—
and then argue that the silence provided no evidence
to support a claim that the districts had been drawn
for discriminatory reasons. This would enable Texas to
“maintain the benefit of [the prior] discrimination.” Id.
358a. The district court found this strategy
“discriminatory at its heart.” Id. 359a.
Pursuing this repeal-and-reenact strategy, the
Legislature “pushed the [2013] redistricting bills
through quickly.” H.J.S. App. 354a. There was no
“deliberative process to ensure that the 2013 plans
cured any taint from the 2011 plans.” Id. 353a.
Instead, “the Legislature continued its steadfast
refusal” to consider creating additional minority
opportunity districts, id., rejecting out of hand
amendments proposed by Latino legislators, see, e.g.,
id. 61a-62; Trial Tr. at 281 (July 14, 2017) (ECF No.
1546). But the Legislature did agree to an amendment
proposed by an Anglo legislator that redrew one of the
challenged districts in a way that introduced new
constitutional infirmities. See infra pages 23-25.
In contrast to the bill enacting districts for the
U.S. House of Representatives, which expressly
“ratified and adopted” the “interim redistricting plan”
21
that had been “ordered” by the district court, Texas Br.
Stat. App. 34a-35a, the bill enacting the new state
house districts made no mention of the 2012
preliminary order. It simply listed the census tracts
contained within each district. See id. 1a-32a.
The Legislature’s 2013 apportionment is known as
Plan H358. The district court described the plan as
“heavily derived from the 2011 plans.” Order at 13
(Sept. 6, 2013) (ECF No. 886). With respect to the
districts in Nueces, Bell, and Dallas Counties now
before this Court, that is an understatement. Six are
identical to the districts initially drawn by the
legislature in 2011: HD32 and HD 34 in Nueces
County; HD54 and HD55 in Bell County; and HD104
and HD105 in Dallas County. A seventh, HD103 in
Dallas County, was changed only slightly through a
population swap with HD115. H.J.S. App. 23a. 9 The
eighth district, HD90 in Tarrant County, was redrawn
by the Legislature. Id. 70a.
2. The district court made clear that its general
findings regarding the purpose behind the enactment
of Plan H358 applied to the districts at issue in
Nueces, Bell, and Dallas Counties.
With respect to the Nueces County districts, the
court acknowledged that it had “not alter[ed] the
districts in [its interim 2012] Plan H309.” H.J.S. App.
28a. But it explained that it had then “lacked the
benefit of the full record in making its preliminary
determinations.” Id. For example, in 2012, the court
had “focused on” SSVR, the State’s proffered measure
of Hispanic population—a measure under which “it
9
No party has challenged that swap. H.J.S. App. 23a.
22
was mathematically impossible to draw two Hispanic
districts wholly within” Nueces County. Id. 27a-28a.
But a “review of the full record” revealed that the State
knew that under a different, more commonly used
measure, “the HCVAP of Nueces County was
comfortably above 50%,” making two Hispanicmajority districts possible. Id. 28a n.19. And yet the
State “did not look into whether two majority-HCVAP
Latino opportunity districts could be maintained.” Id.
27a.
Based on the full record, the court found both that
the Legislature had drawn the Nueces County
districts in 2011 for discriminatory purposes and that
because the tainted district lines “remain[ed]
unchanged” in the 2013 plan, H.J.S. App. 30a, “that
discrimination was purposefully maintained in Plan
H358,” id. 60a.
With respect to the Bell County districts, the court
made a similar finding. There, too, the lines drawn by
the Legislature in 2011 were carried forward into Plan
H358 “unchanged.” H.J.S. App. 20a. The court had
earlier found that in configuring the Bell County
districts, Representative Aycock had deliberately
“divided the growing minority City of Killeen to protect
his incumbency.” M.D.A. App. 289a. The district court
found that “the 2013 Legislature intended to continue
the intentional discrimination found in Plan H283”
with respect to the partition of Killeen. H.J.S. App.
22a. Thus, the racially discriminatory “intent and
harm remain in Plan H358.” Id.
Finally, the court found that the State’s unlawful
intent to minimize minority voting strength in western
Dallas County remained unchanged in reenacting
substantially identical districts in Plan H358. H.J.S.
23
App. 26a. HD 105’s configuration had been designed to
ensure that Latino voters, nearing the ability to
unseat a representative who did not reflect their
values, were frustrated in that political effort. Id.
167a. Nothing in the new plan “remove[d] or
remed[ied] the intentional discrimination” inflicted in
that part of the County. Id. 26a.
3. Unlike the other districts now before this Court,
HD90 in Tarrant County (the home of Fort Worth) was
given its current configuration in 2013. H.J.S.
App. 70a. In 2011, rejecting a proposal by Anglo
incumbent Lon Burnham that would have lowered the
HCVAP of the district to 43.2%, see M.D.A. App. 12a,
259a-60a, the Legislature had adopted a configuration
that was 49.7% HCVAP and 50.1% SSVR, id. 266a.
In 2012, Burnam very narrowly defeated a Latino
opponent in the Democratic primary. Voting was
racially polarized; Burnam’s Latino opponent received
70.6% of the Latino vote while Burnam received the
majority of Anglo and African-American votes. H.J.S.
App. 72a. So in 2013, Burnam sought to revamp the
district’s boundaries to bring the Como community
back into HD90. That community (which is heavily
non-Latino) “had consistently and overwhelmingly
supported him” in the past. Id. 83a. At the same time,
Burnam strove to ensure that HD90 remained
nominally a majority-Latino district with respect to
SSVR, id. 73a, because the Chairman of the House
Redistricting Committee, Drew Darby, was “fixated”
on that figure, id. 82a.
To accomplish both goals, Burnam and his chief of
staff, Conor Kenney, made unabashed use of race.
Burnam directed Kenney to split precincts and swap
census blocks to add Latino population and exclude
24
Anglo population in order to counterbalance the
addition of Como. He admitted that “we really made
some ugly lines” and “got rid of every white voter near
the western boundary of the district to keep the
Hispanic vote over 50 percent, but to get Como back
into the district.” H.J.S. App. 73a. Kenney “started by
swapping whole precincts between the districts, but
quickly began trading populations at the block level,
using racial shading and [Hispanic voting-age
population] as a proxy for SSVR.” Id. Burnam testified
that concern about population deviations got “lost in
the process” because “we had to deal with taking as
many white folks out as we could.” Id. 74a.
During the floor debate on the redistricting bill,
Burnam explained his amendment to the other
legislators this way: it would “take the African
American and Hispanic population out of
Representative Geren’s district and put[] some of my
Anglo population into his district.” H.J.S. App. 75a.
Chairman Darby then urged the members to approve
the amendment, stating that Burnam’s final proposal
“br[ought] the numbers back over 50%.” Id. 81a. The
amendment passed.
The district court found that while HD90 did not
intentionally dilute Latino voting strength—as it
happened, a Latino challenger defeated Burnam in the
2014 primary, H.J.S. App. 76a—the district was an
unconstitutional racial gerrymander under the
standard laid out by this Court in Shaw v. Reno, 509
U.S. 630 (1993), and its progeny. See H.J.S. App. 71a84a. The court pointed to the “strong direct evidence”
in Burnam and Kenney’s testimony “explicitly
acknowledging the use of race in their method” as well
as Burnam’s testimony “speaking candidly about there
25
being ‘too many white people’ in HD90.” Id. 77a. The
court termed Burnam’s floor statements about “as
naked a confession as there can be to moving voters
into and out of districts purely on the basis of race.” Id.
81a.
Applying strict scrutiny, the district court ruled
that the State’s “use of race in drawing HD90 was not
narrowly tailored to achieve a compelling government
interest.” H.J.S. App. 82a-83a. The court saw no
evidence that anyone considered the racial target “in
terms of compliance with the VRA.” Id. 82a. In
particular, none of the witnesses provided “any
meaningful testimony as to the potential significance
of a 50% SSVR threshold.” Id. Based on this evidence,
and its evaluation of the witnesses’ credibility, the
court found that the State’s invocation at trial of
Voting Rights Act compliance to justify its focus on
race lacked a “strong basis in evidence.” Id. 81a.
Proceedings below
1. In response to Plan H358’s enactment, a
number of the plaintiffs (appellees here) received leave
to amend their complaints (which had originally
challenged the 2011 legislative apportionment in Plan
H283). See H.J.S. App. 324a-25a.
One set of amendments related to appellees’
claims against Plan H283: Because this Court’s
decision in Shelby County v. Holder, 133 S. Ct. 2612
(2013), had released Texas from preclearance,
appellees sought relief under Section 3(c) of the Voting
Rights Act, 52 U.S.C. § 10302(c), seeking to reimpose
26
a preclearance requirement on the State. H.J.S. App.
324a. 10
A second set of amendments brought challenges to
Plan 358 under Section 2 of the Voting Rights Act and
various strands of the Fourteenth Amendment. H.J.S.
App. 325a.
2. In 2017, after a lengthy multipart trial, the
district court issued a voluminous set of opinions. It
upheld many districts that one or another plaintiff had
challenged. See, e.g., H.J.S. App. 11a-12a, 17a-18a,
67a-68a, 85a. But with respect to the districts now
before this Court, the district court found intentional
discrimination that violated the Fourteenth
Amendment and Section 2 of the Voting Rights Act. (It
also found that the Nueces County districts violated
Section 2’s “results” test.)
The district court held that the discrimination had
to be “remedied.” H.J.S. App. 85a. And it ordered the
State to tell it whether the Legislature would “take up
redistricting in an effort to cure these violations and,
if so, when the matter will be considered.” Id. 86a.
Finally, it laid out a schedule for the court to analyze
remedial possibilities in the absence of legislative
action. Id.
3. Instead of responding to the district court, the
State sought relief from this Court. On September 12,
In Shelby County, this Court struck down the coverage
formula in Section 4(b) of the Act, 52 U.S.C. § 10303(b). See 133
S. Ct. at 2631. Section 3(c) of the Act authorizes a court that finds
constitutional violations to order that a jurisdiction seek
preclearance of any future changes to its voting laws “for such
period as [the court] may deem appropriate.” 52 U.S.C.
§ 10302(c).
10
27
2017, this Court granted a stay of the district court’s
order. Abbott v. Perez, No. 17A245. In January of this
year, it set the case for argument, postponing decision
on the question of jurisdiction.
SUMMARY OF ARGUMENT
Texas seeks to preempt, rather than appeal from,
an order granting or denying injunctive relief. Its
appeal is thus premature, and this Court lacks
jurisdiction to hear it.
But if this Court concludes otherwise, its task is a
straightforward one. Texas and the United States
stake their arguments on the proposition that the
challenged districts in Nueces, Bell, and Dallas
Counties are “court-drawn,” “court-imposed,” or part of
a court’s “own plan.” That premise is untrue. Once this
Court recognizes that the challenged districts are
legislatively drawn, first and last, the argument that
this Court should accord Texas’s decision a
“particularly strong” “presumption of good faith,” U.S.
Br. 24, collapses.
Moreover, because the districts in Nueces, Bell,
and Dallas Counties were crafted by the Texas
Legislature in 2011 and carried forward essentially
unchanged into the current apportionment statute,
the district court was correct to look at the
Legislature’s intent in both 2011 and 2013. Texas
offers only perfunctory responses to the district court’s
factual findings with respect to the discriminatory
genesis of the challenged districts. The district court’s
detailed findings of fact, with respect to both the
discriminatory intent with which the districts were
drawn in 2011 and the discriminatory intent with
which those district lines were carried forward in
28
2013, should be affirmed under the standard set out in
Rule 52(a) of the Federal Rules of Civil Procedure and
applied consistently by this Court in redistricting
cases. This Court should not permit Texas to launder
its tainted districts by passing them through a district
court decision that did nothing more than decline to
enter a preliminary injunction against them.
Texas is also wrong to claim that a district drawn
with racially discriminatory intent cannot violate the
Fourteenth Amendment or Section 2 of the Voting
Rights Act unless plaintiffs satisfy the threshold
requirements for establishing a Section 2 “results”
claim. To the contrary: As long as a purposefully
discriminatory apportionment has a discernible
discriminatory effect, it violates the Constitution and
Section 2 regardless whether it would be possible to
draw additional majority-nonwhite districts. And with
respect to the Nueces County Section 2 “results” claim,
Texas’s arguments go only to the question of remedy,
not the question of liability.
Finally, with respect to HD90, the State does not
contest the district court’s finding that race was the
predominant motive for how the lines were drawn in
2013. Nor could it. It claims only that the district
survives strict scrutiny because the Legislature had a
“strong basis” for considering race in order to comply
with Section 2. Texas Br. 68. The district court rejected
that claim because it found “no evidence that any
legislator or staffer” considered the “effect on Latino
voting ability in HD90” when drawing the district’s
boundaries. H.J.S. App. 81a-82a. Thus, as with the
districts in the other three counties, the State simply
repeats its version of the facts, completely ignoring the
29
district court’s contrary factual findings and the
applicable standard of review in this Court.
ARGUMENT
I.
The Court should dismiss this appeal for lack of
jurisdiction.
The time it takes to litigate redistricting cases is
frustrating to everyone, appellees most of all. Under
the best-case scenario, a majority of the elections this
decade will have been held under a plan that violates
the Constitution and the Voting Rights Act. But that
devastating fact cannot confer jurisdiction on this
Court to hear Texas’s appeal. If this Court were to buy
Texas’s jurisdictional argument, the upshot would be
many more cases in which justice is delayed.
1. Texas blows by the plain language of 28 U.S.C.
§ 1253, which gives this Court jurisdiction to hear
appeals from three-judge district courts only with
respect to “order[s] granting or denying . . . an
interlocutory or permanent injunction.” Section 1253
does not give this Court appellate jurisdiction over
other sorts of orders, no matter how important those
orders might be to the parties. This is so even with
respect to orders that conclusively determine the
unconstitutionality of a statute, Gunn v. Univ. Comm.
to End the War in Viet Nam, 399 U.S. 383, 388-91
(1970), or grant declaratory relief, White v. Regester,
412 U.S. 755, 760-61 (1973); Mitchell v. Donovan, 398
U.S. 427, 430-31 (1970) (per curiam). Thus, in
Goldstein v. Cox, 396 U.S. 471 (1970), the Court
emphasized “that its jurisdiction under the ThreeJudge Court Act is to be narrowly construed” because
“this Court above all others must limit its review of
interlocutory orders.” Id. at 478.
30
2. Ignoring that directive, the United States and
Texas seek to borrow a construction of 28 U.S.C.
§ 1292(a)(1)—the jurisdictional statute applicable to
the courts of appeals—that permits those courts to
entertain interlocutory appeals beyond the “limited
exception to the final-judgment rule” provided by the
section itself, Carson v. Am. Brands, Inc., 450 U.S. 79,
84 (1981). In exceptional circumstances, a party can
appeal even absent the grant or denial of an injunction
if a district court’s order has the “practical effect” of an
injunction. See Texas Br. 19 (quoting Carson, 450 U.S.
at 83); see also U.S. Br. 20.
Neither Texas nor the United States cites a single
case in which this Court has adopted that loose
construction with respect to Section 1253. Indeed, such
a relaxation would directly contravene this Court’s
declaration in Goldstein.
In fact, this Court has squarely refused to create a
“practical effect” exception to Section 1253’s textual
limitation. In Gunn, for example, a three-judge court
struck down a provision of the Texas Penal Code. 399
U.S. at 384-86. Like the district court below, the court
in Gunn gave the state legislature an opportunity to
cure the defect rather than immediately enjoining the
provision. Id. at 386. Under the theory the State has
pressed here, one would expect this Court to have
entertained the appeal in Gunn because the district
court’s legal ruling, together with its suggestion that
the state remedy the defect, “put[] the state on the
clock” to amend its law or face remedial proceedings,
Texas Br. 23.
But this Court held that it lacked jurisdiction.
That was not because the Court overlooked the
practical effect of the district court’s ruling. The Court
31
recognized that a state official “confronted” with a
federal
court
opinion
holding
a
statute
unconstitutional “would no doubt hesitate long before
disregarding it.” Gunn, 399 U.S. at 390. Nevertheless,
this Court saw “no power” to “deal with the merits of
th[e] case in any way at all” because no injunction had
been granted or denied. Id. This principle applies with
equal force in the context of redistricting. In Whitcomb
v. Chavis, 403 U.S. 124 (1971), the Court rejected an
initial appeal filed after the three-judge court ruled
that a state legislative district was unconstitutional;
the Court lacked jurisdiction because “no injunction
had been granted or denied.” Id. at 138 n.19.
Texas makes no effort to address Gunn or
Whitcomb. Instead, it tries to deflect attention by
claiming that the order here has “the exact same
practical effect” as the orders underlying this Court’s
exercise of jurisdiction in Cooper v. Harris, 137 S. Ct.
1455 (2017), and Gill v. Whitford, No. 16-1161 (U.S.).
Texas Br. 22.
But the orders from which the parties appealed in
those two cases satisfied the textual requirement of
Section 1253. In both cases, the district court had
expressly enjoined state officials from conducting any
future elections under the challenged plan. 11 Thus, the
officials in those cases, unlike the officials here, were
See Whitford v. Gill, No. 3:15-cv-00421-bbc, 2017 WL
2623104, at *1 (W.D. Wis. Feb. 22, 2017) (three-judge court)
(“defendants are enjoined from using the [challenged] districting
plan . . . in all future elections”); Harris v. McCrory, No. 1:13-cv00949-WO-JEP, at 1 (M.D.N.C. Feb. 5, 2016) (three-judge court)
(ECF No. 143) (state officials are “enjoined from conducting any
elections for the office of U.S. Representative until a new
redistricting plan is in place”).
11
32
subject to “an extraordinary writ, enforceable by the
power of contempt,” Gunn, 399 U.S. at 389. And it was
absolutely clear that no further elections would take
place under the challenged plans.
The United States at least acknowledges the force
of Gunn and Whitcomb. U.S. Br. 23. And it pointedly
does not embrace Texas’s expansive claim that any
finding of liability combined with the tautological
observation that there needs to be a remedy once a
violation is found entitles a state to invoke Section
1253. But the United States then suggests that
somehow the “timing pressures present here”
transform an otherwise unappealable order into an
injunction. U.S. Br. 23. It offers no explanation of
exactly how that transformation occurs, or any
standards to guide future litigants in knowing when
an unappealable order becomes appealable. And on
the facts, the timeframes in Whitcomb and this case
are nearly identical. 12 The Court should reject this
jury-rigged rule.
3. Adhering to the text of Section 1253 is not an
exercise in arid formalism. Allowing premature
appeals threatens unnecessary and excessive
litigation.
In Whitcomb, the district court issued an opinion in July
1969, see 403 U.S. at 131, for an election cycle that was set to
begin in earnest right after the New Year, see Chavis v.
Whitcomb, 307 F. Supp. 1362, 1366 (S.D. Ind. 1969) (three-judge
court), and ultimately issued a remedy in October, see Whitcomb,
403 U.S. at 139. Here, the district court issued its opinion in
August 2017 with the next election cycle set to begin shortly after
the New Year. Had Texas complied with the district court’s order,
a remedy could have been in place by October.
12
33
If Texas is right about when states can invoke this
Court’s appellate jurisdiction, then states will be free
to appeal whenever a three-judge court issues even a
partial summary judgment in a multiparty,
multiclaim apportionment lawsuit. It is a truism that
the law must furnish a remedy for the violation of a
right. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163
(1803). But that hardly transforms every declaration
of a violation into a de facto injunction.
Texas’s claim that interlocutory appellate
jurisdiction is necessary to avoid the problem of
“extremely expedited” review, Texas Br. 23, fares no
better. That argument attempts to convert timing
pressures caused by this appeal into justifications in
favor of the appeal itself. Rewarding the State’s efforts
would produce a dangerous precedent for purposes of
Section 1253. Given that primary and general
elections occur on a two-year cycle and taking into
account the calendar on which this Court operates, one
party or another will nearly always be able to assert
that an election deadline is impending and therefore
justifies this Court’s immediate review. Exigency is
without doubt a necessary condition for Section
1292(a)(1)-style review, see Carson, 450 U.S. at 84, but
it is not a sufficient one, and it cannot overcome the
fact that nothing in the order below operates as an
injunction.
Texas strays even further afield when it claims
that it should be allowed to appeal in the absence of an
injunction because this would somehow “even[] the
playing field” between itself and appellees. Texas Br.
23. To be sure, if appellees’ claims “had been
definitively rejected,” id., appellees could have
appealed. But that is because their request for
34
injunctive relief would necessarily have been denied,
bringing them squarely within the terms of Section
1253. As the case stands, however, no one can
“definitively” say in what ways the State might be
forced to depart from the district lines its Legislature
drew. Far from leveling the playing field, endorsing
Texas’s proffered “[p]ractical considerations” as
justification for its appeal would unjustifiably tip the
scales in the State’s favor.
Make no mistake: Allowing states to appeal after
a liability finding but before any injunction virtually
guarantees that this Court will see recurrent appeals
in redistricting cases. This would flout the well-settled
principle that “piecemeal appellate review is not
favored,” particularly under Section 1253. Goldstein,
396 U.S. at 478. A state will have every incentive to
appeal after a finding of liability without waiting to see
whether a district court will in fact enjoin an upcoming
election and without there being any potential remedy
in place. If it loses, it will no doubt file a second appeal
if the district court rejects its proffered remedy (if it
even proffers one). And of course if a district court
accepts the state’s proposed remedy, or imposes its
own, disappointed plaintiffs will then appeal. The
consequence will be more litigation, and more delay in
resolving redistricting cases.
In short, the district court has neither granted nor
denied injunctive relief of any kind. That alone should
dispose of this appeal. This Court should reject Texas’s
efforts to bend Section 1253 into a statute permitting
appeals any time a state objects to a ruling in a
redistricting case.
35
II. In the alternative, this Court should affirm the
district court’s finding that Plan H358
intentionally dilutes minority voting strength.
If this Court decides that it has jurisdiction over
Texas’s appeal, then it should accept the district
court’s finding that the Legislature adopted and
maintained the configurations of the districts at issue
in Nueces, Bell, and Dallas Counties for racially
discriminatory purposes and hold that the districts
violate both Section 2 of the Voting Rights Act, 52
U.S.C. § 10301, and the Fourteenth Amendment.
Texas’s and the United States’s arguments against
doing so distort the facts, ignore the standard of
review, and misread this Court’s precedents.
A. The challenged districts originated in 2011
legislation
that
was
tainted
by
discriminatory motivations and not in a
court-imposed remedy.
1. Texas does very little to challenge the district
court’s finding that the 2011 process that produced
Plan H283 was tainted by purposeful racial
discrimination. (Indeed, Texas implicitly acquiesced in
that finding when it abandoned any attempt to defend
the 21 districts the three-judge court “reconfigured,”
H.J.S. App. 307a, after its preliminary ruling
regarding the districts’ likely unconstitutionality.)
And the United States actually intervened in this case
as a plaintiff to assert both that Plan H283 “had been
adopted with racially discriminatory intent in
violation of Section 2 and that Section 3(c) relief was
warranted.” U.S. Br. 13.
Instead, Texas claims that that finding, and the
district court’s detailed findings with respect to the
36
discriminatory intent that infected the creation of
individual districts, is “legally irrelevant,” Texas Br.
41, because in Plan H358 the Legislature “adopted
unchanged districts that the court itself ordered the
State to use in 2012,” id. at 24.
The United States at least acknowledges that
under this Court’s precedents, the district court could
properly “consider[] 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.” U.S. Br.
32 n.12 (quoting Vill. of Arlington Heights v. Metro.
Hous. Dev. Corp., 429 U.S. 252, 267 (1977)). But it too
asserts that the challenged districts were
“adopted . . . without change from the court’s own 2012
interim plan[].” U.S. Br. 24. Indeed, the United States
goes on to propose that the “normal presumption” of
constitutionality afforded to legislative enactments be
“heightened by the State’s acceptance of the judicial
plan.” Id. at 30. The United States repeatedly invokes
that
newfound,
and
“particularly
strong,”
presumption, id. at 24, 32 n.12, 38, 40; see also id. at
37 (arguing that appellees should have to “adduce
particularly persuasive evidence”), presumably
because it thinks the presumption is indispensable to
upholding the challenged districts.
Texas and the United States have gotten things
exactly backwards. The district court—at this Court’s
direction, see Perry v. Perez, 565 U.S. 388, 393 (2012)
(per curiam)—adopted the Legislature’s plan with
regard to these districts; the Legislature did not adopt
the court ’s plan. The configurations of the challenged
districts are entirely a product of lines drawn by the
Legislature in Plan H283—as the district court
37
unanimously recognized. Order at 13 (Sept. 6, 2013)
(ECF No. 886). The most accurate way to characterize
the record is to say that the Legislature drew the
districts in 2011 and that the district court permitted
those unprecleared districts to go into effect for the
2012 election. Indeed, Texas’s prior appeal to this
Court was designed to achieve precisely that goal.
Having successfully argued in 2012 that the court
below should be required to implement Texas’s plan to
the maximum extent possible, Texas should not now
be permitted to turn around and claim that the
resulting plan was in fact the court’s idea.
2. In any event, the district court’s 2012 interim
order could not provide Texas with a safe harbor.
The district court’s 2012 order was avowedly
“preliminary,” H.J.S. App. 303a, 314a, and explicitly
disclaimed any “final determination of any legal or
factual matters,” id. 303a. And as Texas itself
acknowledged at the time, it is “well established” that
any finding “made in connection with an award of
preliminary relief is not a final ruling on the merits.”
Reply Br. for Appellants at 27, Perry v. Perez, 565 U.S.
388 (2012) (Nos. 11-713 et al.). Indeed, it has long been
blackletter law that “the findings of fact and
conclusions of law made by a court granting a
preliminary injunction are not binding at trial on the
merits.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395
(1981); see also Community Nutrition Inst. v. Block,
749 F.2d 50, 56 (D.C. Cir. 1984) (Scalia, J.) (noting that
a court’s “tentative assessment made to support the
issuance of a preliminary injunction” is “not a final
determination” and “is not even law of the case”); 18A
Charles Alan Wright, et al., Federal Practice and
Procedure §4445, at 301 (2d ed. 2002) (a “[g]rant or
38
denial of interlocutory injunctions clearly does not
foreclose further litigation in the same proceeding, so
long as [the] decision rested on mere preliminary
estimates of the merits or discretionary remedial
grounds”).
Given this well-established rule and this Court’s
unanimous “agree[ment]” that “a preliminary
injunction holds no sway once fuller consideration
yields rejection of the provisional order’s legal or
factual underpinnings,” Sole v. Wyner, 551 U.S. 74, 78
(2007), Texas was on notice that there could be no
assurance that the districts in Plan H283 would
survive a full trial. No reasonable legislature could
have thought that the 2012 decision was anything
other than what it proclaimed itself to be: an “interim”
order, H.J.S. App. 301a, that indicated “[n]othing”
about the ultimate “merits as to any claim or defense
in this case,” id. 315a.
This case shows the wisdom of the principle this
Court articulated in Camenisch and Sole: After a full
trial, the district court made findings based on
evidence that was unavailable at the time it ruled
preliminarily on an interim plan for the 2012 elections.
For example, in 2012, the district court did not realize
that the State was emphasizing SSVR majorities in
Nueces County because it was possible to draw two
majority HCVAP districts. See H.J.S. App. 134a. Nor
had it yet had the opportunity to hear from, and judge
the credibility, of the legislator from Bell County who
was instrumental in splitting the city of Killeen to
fracture a large community of color between two Anglo
districts. Nor had it heard from the architect of the
challenged districts in western Dallas County, whose
39
explanations the court found to be “superficial” and “in
bad faith.” See id. 171a-72a.
3. If anything, the district court’s 2012 remedial
order actually was an early indicator that Plan H283
was tainted by purposeful racial discrimination. This
Court has long recognized “the well-settled evidentiary
principle” that “a finding of illicit intent as to a
meaningful portion of the item under consideration
has substantial probative value on the question of
illicit intent as to the remainder.” Keyes v. Denver Sch.
Dist. No. 1, 413 U.S. 189, 207-08 (1973) (citing 2 John
Henry Wigmore, A Treatise on the Anglo-American
System of Evidence in Trials at Common Law 301-02
(3d ed. 1940)). The fact that even on a preliminary
record the district court had found it necessary to
“reconfigure[],” “restore[],”and “retract” portions of
Plan H258, H.J.S. App. 307a, 314a, made it
unreasonable for Texas to view the district court’s
interim order as an imprimatur on the remainder of
its districts.
4. Because most of the challenged districts’
boundaries in (legislatively drawn) Plan H283 in 2011
and their boundaries in (legislatively drawn) Plan
H358 in 2013 were identical, the district court’s
expressly provisional acquiescence for the State to use
those boundaries in 2012 does nothing to vitiate their
status as purely legislative plans. So even if this Court
were to agree with the United States’s proposal to
create a “heightened” presumption of constitutionality
40
when a state “accept[s]” a “judicial plan,” U.S. Br. 30,
that presumption would have no bearing on this case. 13
Instead, with respect to the districts carried
forward unchanged from Plan H283 to Plan H358, the
2013 simultaneous repeal and reenactment is nothing
more than a legal fiction. As this Court long ago
explained, when a statutory provision is replaced by
one
that
is
“almost
identical,”
then
“[n]otwithstanding” any “formal repeal,” it is “entirely
correct to say that the new act should be construed as
a continuation of the old.” Bear Lake & River
Waterworks & Irrigation Co. v. Garland, 164 U.S. 1,
11 (1896); see also Oneida County v. Oneida Indian
Nation of N.Y. State, 470 U.S. 226, 246 n.18 (1985); 73
Am. Jur. 2d Statutes § 271 (West 2018); see also Ne.
Fla. Chapter of the Associated Gen. Contractors of Am.
v. City of Jacksonville, 508 U.S. 656, 661-62 (1993)
(treating an ordinance that was repealed and
essentially reenacted as being continuously in effect).
B. The Legislature’s 2013 reenactment of the
challenged districts was purposefully
discriminatory.
Plan H358 was drawn by “a substantially similar
Legislature with the same leadership only two years
after the original enactment” of Plan H285. H.J.S.
App. 352a n.37. Texas argued before the district court
that the reason it preserved the challenged districts
unchanged (save for an immaterial modification of
HD105) was that it believed that those districts had
The State did not just “accept” the interim plan; it changed
a district (HD90 in Tarrant County) in ways that introduced new
constitutional infirmities. See supra pages 23-25.
13
41
been approved by the district court and that retaining
them would “avoid protracted litigation,” Texas Br. 1.
Texas’s reason for reenacting the districts, like all
“determination[s] of a legislature’s motivation,” is
“ultimately an issue of fact,” as the United States
forthrightly acknowledges. U.S. Br. 25 (citing Hunt v.
Cromartie, 526 U.S. 541, 549 (1999)). And as an issue
of fact, it is one where the district court’s resolution is
entitled to great weight.
Here, the district court heard Texas’s witnesses,
found their proffered explanations pretextual, and
ultimately rejected Texas’s explanation on factual
grounds. See H.J.S. App. 345a-46a, 348a, 353a-59a;
supra pages 18-23. Instead, the district court found
that the State stuck with its original districts because
it “intended” to “maintain[]” the discriminatory “taint”
that had originally motivated the districts while being
“safe from remedy” through the ruse of repeal-andreenact. H.J.S. App. 359a.
1. The district court’s findings of fact with respect
to the Legislature’s intent in both 2011 and 2013 are
entitled to significant deference. Last Term, this Court
reiterated its longstanding recognition that a district
court’s “assessment” of the purposes behind a
legislative apportionment plan “warrants significant
deference on appeal to this Court.” Cooper v. Harris,
137 S. Ct. 1455, 1464 (2017). That is because the
question whether a state’s apportionment plan was
adopted or maintained for a racially discriminatory
purpose is a question of fact to be reviewed under
Rule 52(a)’s deferential clear-error standard. See
Rogers v. Lodge, 458 U.S. 613, 622-23 (1982); see also
Anderson v. City of Bessemer City, 470 U.S. 564, 573
(1985) (“a finding of intentional discrimination is a
42
finding of fact”). So too is the question whether racial
considerations predominated in a state’s redistricting
decisions. Cooper, 137 S. Ct. at 1465.
In fact-intensive redistricting litigation, a district
court’s assessment requires “particular familiarity
with the indigenous political reality” and “‘an
intensely local appraisal of the design and impact’ of
the contested electoral mechanisms.” Thornburg v.
Gingles, 478 U.S. 30, 79 (1986) (first quoting Rogers,
458 U.S. at 622, and then quoting White v. Regester,
412 U.S. 755, 769-70 (1973)). Still greater deference is
required when those findings turn on the credibility of
competing witnesses. This Court “give[s] singular
deference to a trial court’s judgments about the
credibility of witnesses” because “the various cues that
‘bear so heavily on the listener’s understanding of and
belief in what is said’ are lost on an appellate court
later sifting through a paper record.” Cooper, 137 S.
Ct. at 1474 (quoting Anderson, 470 U.S. at 575). The
district court lived with this case for many years,
through several trials at which it observed numerous
witnesses. Its findings cannot be ignored, much as the
State would like this Court to do so.
Under Rule 52(a), a reviewing court may not
reverse the factfinder merely because it “would have
decided the case differently.” Anderson, 470 U.S. at
573. And “[w]here there are two permissible views of
the evidence, the factfinder’s choice between them”
must control. Id. at 574; accord Cooper, 137 S. Ct. at
1465 (“A finding that is ‘plausible’ in light of the full
record—even if another is equally or more so—must
govern.”). Rule 52(a) thus guarantees that the merits
trial remains the “main event” rather than merely a
43
“tryout on the road” to appellate review. Anderson, 470
U.S. at 575 (citation omitted).
2. In the joint trial on the 2013 congressional and
state house plans conducted during the summer of
2017, the district court heard extensive testimony with
respect to the legislative process in 2013—evidence
that provided direct support for its conclusion that the
Legislature acted with a discriminatory motive. The
district court properly relied on the guidance this
Court provided in Arlington Heights, 429 U.S. at 26468, for inquiring into legislative intent. See H.J.S. App.
340a.
The district court found that the Legislature did
not actually believe that “passing the interim maps
would end the litigation.” H.J.S. App. 358 n.45. It
pointed out that legislative leaders had made selfcontradictory statements about the rationale for the
reenactment and that the Legislature’s own legal
advisor had explained to legislators that reenacting
the maps was unlikely to resolve the litigation. Id.
Additionally, the court found that the Legislature
“pushed the [2013] redistricting bills through quickly”
with no real discussion of district configurations.
H.J.S. App. 354a. It further found that “‘[t]his hurried
pace, of course, strongly suggests an attempt to avoid
in-depth scrutiny.’” C.J.S. App. 304a (quoting N.C.
State Conference of the NAACP v. McCrory, 831 F.3d
204, 228 (4th Cir. 2016), cert. denied, 137 S. Ct. 1399
(2017)). Finally, the court found that the purported
legislative findings regarding the 2013 plan were in
fact produced ahead of time by the Texas Attorney
General to provide cover for the Legislature’s retention
of the existing districts. H.J.S. App. 355a n.41.
44
One of the primary concerns of incumbents in
Nueces, Bell, and Dallas Counties was to check the
growing power of minority communities that could get
them “unelected,” M.D.A. App. 279a; see supra pages
4-7, 10-11. That incentive to dilute minority voting
strength remained just as powerful in 2013 as it had
been two years before. And as this Court recognized
with respect to Texas’s last round of reapportionment,
shoring up an incumbent’s district in the face of
“diminishing electoral support” from a growing
minority community “bears the mark of intentional
discrimination that could give rise to an equal
protection violation.” LULAC v. Perry, 548 U.S. 399,
440 (2006).
Given all this evidence, the district court did not
err in its ultimate finding of fact: that the 2013
Legislature’s intent was to preserve the districts the
Legislature had drawn in 2011 that had not already
been struck down by the district court.
3. Texas is simply wrong to argue that any
consideration of the intent behind Plan H283 is
somehow a “once-bitten-forever-damned mentality,”
Texas Br. 34. Leaving aside that this case hardly
involves “once” and “forever,” this Court has
consistently declared that courts adjudicating
intentional discrimination claims can look at the
historical evidence.
When a provision’s “original enactment was
motivated by a desire to discriminate . . . on account of
race,” and it “continues to this day” to have a
discriminatory effect, then the provision “violates
equal protection under Arlington Heights.” Hunter v.
Underwood, 471 U.S. 222, 233 (1985). Evidence of past
discrimination, as this Court explained in Rogers v.
45
Lodge, “is relevant to drawing an inference of
purposeful discrimination, particularly in cases”
where prior purposefully discriminatory enactments
are “replaced by laws and practices which, though
neutral on their face, served to maintain the status
quo.” 458 U.S. at 625. In particular, the fact that
“[s]ome of the more blatantly discriminatory
[provisions in a law]” have already been “struck down
by the courts” in no way “legitimate[s]” the remaining
provisions. Hunter, 471 U.S. at 233. Those principles
bear directly on this case.
Texas is not telling the whole truth when it claims
that it enacted Plan H358 because it “wanted to bring
the litigation to an end.” Texas Br. 2. The complete
truth is that Texas wanted to bring this litigation to
an end in order to keep in place the districts its
Legislature had drawn in 2011 for discriminatory
reasons.
If Texas had wanted to bring this litigation to an
end correctly, it had two options. First, it could have
drawn a new apportionment plan that neither
intentionally nor unintentionally diluted minority
voting strength. Had it done so, appellees would not
have continued to challenge the districts. Second,
Texas could have defended the merits of its districts
and brought the litigation to an end by winning the
case. What Texas cannot do is end the litigation by
leaving the court at halftime and asking the referees
to declare it the winner.
By deciding to retain the districts it had drawn in
2011, Texas retained both the assets and the liabilities
of those districts. One of those liabilities is that the
challenged districts in Nueces, Bell, and Dallas
46
Counties were the product of intentional efforts to
dilute minority voting strength.
The district court was entitled to infer that when
“a substantially similar Legislature with the same
leadership” drew exactly the same districts “only two
years after” it first created them, H.J.S. App. 352a
n.37, it did so for the same reasons. That inference is
particularly defensible when the reenactment was
“pushed . . . through quickly,” id. 354a, with no
discussion or debate over concerns raised by minority
legislators.
Under the circumstances, the district court was
presented with only two explanations for the repealand-reenactment strategy: The State claimed it kept
the 2011 lines in place in the challenged districts
because it thought that the district court had somehow
blessed them in 2012, and that the court would
therefore rule in its favor on the merits; appellees
claimed that the State kept the 2011 lines in place for
the same reason it had adopted them—to dilute
minority voting strength. The district court’s decision
to resolve this dispute against the State is the
quintessential factfinding entitled to deference from
this Court. The United States is wrong to label this an
improper “presumption of persistent discrimination.”
U.S. Br. 32. The district court simply followed the
evidence where it led.
Put another way, the finding of past
discrimination here shows that the United States’s
argument about a “particularly strong” presumption
in favor of Texas’s Plan H358 has gotten things exactly
backwards. As Justice Thomas explained in United
States v. Fordice, 505 U.S. 717 (1992), when a state
keeps in place a system originally adopted for
47
discriminatory reasons, that original intent remains
relevant “both because the State has created the
dispute through its own prior unlawful conduct and
because discriminatory intent does tend to persist
through time.” Id. at 746-47 (Thomas, J., concurring)
(citing Keyes, 413 U.S. at 209-10, and Hazelwood Sch.
Dist. v. United States, 433 U.S. 299, 309-10 (1977)).
The district court, in considering evidence from
2011 in adjudicating the legality of the 2013 plan, did
not commit legal error. Indeed, ignoring that evidence
would have been flatly inconsistent with this Court’s
precedent.
C. Plaintiffs in intentional vote dilution cases
need not prove that it would be possible to draw
additional majority-minority districts.
Texas’s final argument with respect to the district
court’s findings of intentional discrimination rests on
the premise that “to establish the effects prong of an
intentional-vote-dilution claim, a plaintiff must prove
that there is ‘the possibility of creating more than the
existing number of reasonably compact districts with
a sufficiently large minority population to elect
candidates of [the minority group’s] choice.’” Texas
Br. 49 (first quoting LULAC, 548 U.S. at 430, and then
quoting Johnson v. De Grandy, 512 U.S. 997, 1008
(1994)).
Texas is wrong. Neither of the cases it cites were
resolved as intentional vote dilution claims. Applying
the correct standard for assessing effects with respect
to such claims under either Section 2 or the
Fourteenth Amendment, this Court should reject
Texas’s argument that there was no “vote-dilutive
48
effect” in Nueces, Bell, and Dallas Counties, see Texas
Br. 53-54, 58-59, 60-61.
1. Requiring plaintiffs to show the possibility of
creating additional majority-minority districts is an
artifact of a particular kind of claim: vote dilution
under the “results” test of Section 2. As this Court
explained in Gingles, this requirement is essential
when the injury the plaintiffs assert is the state’s
failure to draw such a district. See 478 U.S. at 49-51.
By definition, if such a district cannot be drawn, the
state’s failure to draw it cannot be the basis for
liability. See id. at 50.
But as this Court has repeatedly recognized, an
apportionment adopted for discriminatory reasons
cannot be upheld even if its effect “was, standing
alone, perfectly legal.” City of Pleasant Grove v.
United States, 479 U.S. 462, 471 n.11 (1987). To the
contrary, “[a]n official action” when “taken for the
purpose of discriminating” on account of race “has no
legitimacy at all under our Constitution.” Id.
(emphasis added) (quoting City of Richmond v. United
States, 422 U.S. 358, 378 (1975)). Legislative
apportionments violate the Fourteenth Amendment if
“‘conceived or operated as purposeful devices to further
racial discrimination’ by minimizing, cancelling out or
diluting the voting strength of racial elements in the
voting population.” Rogers, 458 U.S. at 617 (emphasis
added) (citation omitted).
To be sure, absent discriminatory purpose, a
jurisdiction does not violate federal law simply by not
drawing districts that would have increased a small
minority group’s voting strength. Bartlett v.
Strickland, 556 U.S. 1, 14-20 (2009) (plurality
opinion). But the limitation says nothing about
49
circumstances like those in the present case, in which
a state has acted with a discriminatory purpose. To the
contrary, Justice Kennedy’s plurality opinion in
Bartlett expressly stated that the Gingles precondition
of showing that “the minority population in the
potential election district is greater than 50 percent”
simply “does not apply to cases in which there is
intentional discrimination against a racial minority.”
Id. at 20.
2. The Bartlett plurality’s reliance on Garza v.
County of Los Angeles, 918 F.2d 763 (9th Cir. 1990),
see Bartlett, 556 U.S. at 20, supports the following
proposition: When there has been a showing of
intentional discrimination, liability under the
Fourteenth Amendment or Section 2 is established
whenever the challenged district makes it harder for
the minority community to participate effectively in
the political process.
In this case, the district court found that the
challenged districts had exactly that effect.
Start with Nueces County. Because much of the
Latino population there was deliberately “packed” into
one district to buttress the prospects of an Anglo
legislator in another district, those Latinos left behind
in the overwhelmingly Anglo district were
“marginalized.” M.D.A. App. 102a. Similarly, in Bell
County, the Legislature’s decision to split Killeen
minimized the voting strength of a multi-minority
coalition. H.J.S. App. 19a-22a. And in Dallas County,
the district court found that the Legislature had
“unnecessarily plac[ed] Latinos in HD103 and HD104
while simultaneously making HD105 more Anglo in
order to protect the Anglo” incumbent and to minimize
Latino political power. See id. 172a.
50
Given the adverse consequences for those
counties’ minority citizens, the district court correctly
held that appellees had proved a violation of Section 2
and the Fourteenth Amendment. What the remedy
should be can be determined on remand. 14
III. The configuration of the districts in Nueces
County violates Section 2’s “results” test.
In addition to holding that the configuration of
HD32 and HD34 violated federal law because the
Legislature’s adoption of those districts was the
product of intentional racial discrimination, the
district court held that the configuration violated
Section 2’s “results” test “insofar as two compact
HCVAP-majority opportunity districts could be drawn
within Nueces County.” H.J.S. App. 85a. This Court
need not address that alternative holding if, as
appellees have urged, it affirms the district court’s
findings with regard to appellees’ intentional
discrimination-based claims. But if the Court does
reach that holding, it should affirm.
Contrary to the State’s assertion, Texas Br. 65, the
district court did not conclude that it was impossible
to draw two minority opportunity districts within
Nueces County. While there was some uncertainty
over how well Latino voters would fare if the Section 2
remedy involved doing nothing beyond reconfiguring
the two districts wholly within Nueces County, see
H.J.S. App. 50a, 58a-59a, the court found that a Latino
voting population that “continues to climb” would over
The fact that the remedy for the State’s intentional
discrimination has not yet been adjudicated reinforces the
conclusion that this Court lacks jurisdiction over the State’s
premature appeal. See supra pages 29-34.
14
51
time give Latino voters “a significant advantage in
house district elections” in both districts; indeed, “they
could easily control elections.” Id. 55a, 57a-58a. Thus,
after extensive discussion, the court explained that
while two such districts might not offer “the best
configuration for minority success,” id. 59a, they would
arguably provide an “opportunity to win elections,” see
id. 56a (emphasis omitted).
Texas’s claim that the district court “recognized”
that a second majority-Latino district in Nueces
County would produce an “over-representation” of
Latino voters in the county, Texas Br. 67 (quoting
H.J.S. App. 51a), rips a phrase out of context. The
district court’s remark came in the course of pointing
out, as part of its totality-of-the-circumstances
analysis, that making both districts in Nueces County
majority-Latino should not undermine finding a
Section 2 violation, given that even with two majorityLatino districts in Nueces County, Latinos “statewide
would still be under-represented.” H.J.S. App. 51a.
Texas has not challenged the district court’s
findings regarding the demographics of past, present,
and potential districts within Nueces County. Nor has
it challenged the district court’s findings regarding
racial polarization and socioeconomic disparities
affecting Latino political participation within the
county. Given that appellees have satisfied all the
Gingles preconditions, see supra pages 7-8—and in
light of the fact that the district court has not yet
decided whether it will require a remedy that creates
two majority-Latino districts within Nueces County,
H.J.S. App. 60a-61a—this Court should affirm the
district court’s ruling with respect to the Section 2
results claim against HD32 and HD34.
52
IV. HD90 in Tarrant County is an unconstitutional
racial gerrymander.
Under Shaw v. Reno, 509 U.S. 630 (1993), and its
progeny, an electoral district violates the equal
protection clause when: “(1) race is the ‘dominant and
controlling’ or ‘predominant’ consideration in deciding
‘to place a significant number of voters within or
without a particular district,” and (2) “the use of race
is not ‘narrowly tailored to serve a compelling state
interest.’” Ala. Legislative Black Caucus v. Alabama,
135 S. Ct. 1257, 1264 (2015) (first quoting Miller v.
Johnson, 515 U.S. 900, 913, 916 (1995), and then
quoting Shaw v. Hunt, 517 U.S. 899, 902 (1996)).
Texas does not contest the district court’s finding
that race was the predominant factor “motivating the
decision of which individuals to place within and
without HD90” when its boundaries were reconfigured
by the Legislature in 2013, H.J.S. App. 77a. The
district court, which observed the witnesses’
testimony, deemed the explanation for the HD90’s
boundaries given by the legislator and staff member
who drew it “as naked a confession as there can be to
moving voters into and out of districts purely on the
basis of race.” Id. 81a. Thus, the district properly
subjected HD90 to strict scrutiny.
Texas’s sole defense is that the State was entitled
to engage in this deliberate racial gerrymander in
order to comply with a Voting Rights Act mandate to
“maintain[] HD90 as a majority-Hispanic district.”
Texas Br. 69. That defense is meritless. The 2013
changes made to HD90 involved neither a genuine
compelling government interest nor narrow tailoring.
And because “HD90 actually was redrawn by the 2013
Legislature,” id. at 34, it undermines the State’s
53
refrain that in 2013, the State “enacted a House plan
that made only minor changes” to the legislatively
drawn districts that had been left intact under the
district court’s 2012 interim remedy, id. at 26.
1. When strict scrutiny applies, as it does here, the
question is whether the government’s “actual
purpose[]” in relying on a suspect classification is a
compelling one, City of Richmond v. J.A. Croson Co.,
488 U.S. 469, 495 (1989)—not whether the
government can proffer an “hypothesized or invented
post hoc ” justification “in response to litigation,”
United States v. Virginia, 518 U.S. 515, 533 (1996).
Here, the district court concluded that the real
motivation for the 2013 reconfiguration of HD90 had
nothing to do with ensuring compliance with the
Voting Rights Act. H.J.S. App. 81a-83a. As appellees
have already explained, see supra pages 41-43, in
reviewing that factual finding, this Court must “give
singular deference” to the trial court’s credibility
determinations. Cooper v. Harris, 137 S. Ct. 1455,
1476 (2017). That deference is warranted here. In
addition, the record more than supports the district
court’s findings.
To begin, HD90 as configured in 2011 was
majority-Latino in HCVAP using 2008-2010 ACS data,
and majority SSVR. M.D.A. App. 266a. The Texas
Attorney General urged the Legislature to retain that
configuration as part of the 2013 apportionment
legislation. See H.J.S. App. 440a. Thus, rather than
suggesting that the Voting Rights Act required the use
of race to redraw HD90’s boundaries, the State’s chief
lawyer recommended retaining the existing
boundaries. Had the Legislature followed that
advice—as it did with respect to essentially all the
54
other districts that had not been altered by the 2012
interim remedy—HD90 would have remained a
majority Hispanic district with no need to deliberately
and surgically move voters into and out of the district
based on their race. There would have been no Shaw
claim.
As Texas acknowledges, the impetus for the 2013
boundary manipulations was the incumbent’s desire to
recapture a pocket of non-Latino supporters who had
not been included within HD90 under the 2011 plan.
Texas Br. 69-70. It was the discretionary decision to
add this non-Latino population to the district that
necessitated removing other non-Latino residents in
order to retain the district’s demographic character.
Discussion of redrawing HD90 to comply with the
Voting Rights Act appears nowhere in the 2013
legislative record. On the state house floor,
Representative Burnam, the amendment’s author,
stated only that the new boundaries for HD90 restored
the Como precinct to HD90 and also moved Anglos out
of HD90 and minority voters into HD90. See H.J.S.
App. 80a-81a. At trial, Burnam testified that his
staffer did not track election results while making
changes to HD90 because “[i]t was purely a
demographic exercise.” Task Force M.D.A. App. 5a.
The district court concluded, after reviewing all the
evidence, that “no one considered the legal significance
of the [demographic] target in terms of compliance
with the VRA.” H.J.S. App. 81a-82a.
In addition to the dearth of evidence showing that
Texas considered the impact of its changes on Latino
voters’ opportunity to elect, the sequence of district
configurations belies the State’s claim that the
deliberate focus on race was undertaken for Voting
55
Rights Act compliance. In the usual successful defense
to a Shaw claim, a state shows that the Voting Rights
Act requires use of race because the elements of a vote
dilution claim are present. See, e.g., Cooper, 137 S. Ct.
at 1470 (“If a state has good reason to think that all
the ‘Gingles preconditions’ are met, then so too it has
good reason to believe that § 2 requires drawing a
majority-minority district.”). Here, however, the
State’s changes to HD90 were not spurred by a desire
to create a Latino opportunity district in compliance
with the Voting Rights Act. HD90 was already a
majority-Latino district before Burnam proposed
redrawing it. That the redrawn district actually
“decrease[d]” the share of Spanish-surnamed
registered voters in the district, H.J.S. App. 73a,
further gives the lie to the State’s rationalizations: It
is difficult to imagine how the Voting Rights Act would
require predominant use of race to lower the electoral
strength of Latinos in an existing Latino opportunity
district. 15
2. Nor, under the circumstances, was the use of
race in modifying HD90 narrowly tailored to comply
with the Voting Rights Act.
Even if the district court had found that Texas had
a strong basis in evidence to conclude that the Voting
The Court should reject Texas’s attempt to use an
expression of concern about this decrease made by MALC’s
counsel as evidence that compliance with the Voting Rights Act
motivated the Legislature’s reliance on race. See Texas Br. 70.
That concern was expressed in the context of an initial proposal
by Burnam and Kenney to modify HD90 that would have reduced
the number of Latino registered voters in HD90. J.A. 399a. That
concern would never have needed to be expressed had the State
maintained the 2011 configuration of HD90.
15
56
Rights Act required it to maintain the existing SSVR
level in HD90, the narrowly tailored solution would
have been to refrain from moving a heavily non-Latino
precinct into HD90 and then splitting ten other
precincts to move voters into and out of the district
based on race.
The State’s race-based redistricting of HD90
cannot survive strict scrutiny, regardless whether the
Voting Rights Act required maintaining the district’s
existing SSVR, because it was eminently possible to
meet that target without making predominant use of
race. Texas had already met that goal in 2011.
CONCLUSION
For the foregoing reasons, this Court should
dismiss for lack of jurisdiction or, alternatively, affirm
the order of the district court.
Respectfully submitted,
57
David Richards
RICHARDS, RODRIGUEZ &
SKEITH, LLP
816 Congress Avenue
Suite 1200
Austin, TX 78701
Counsel for Appellees
Shannon Perez, et al.
Allison J. Riggs
Jaclyn A. Maffetore
SOUTHERN COALITION FOR
SOCIAL JUSTICE
1415 W. Highway 54
Suite 101
Durham, NC 27707
Robert Notzon
LAW OFFICE OF ROBERT S. NOTZON
1507 Nueces Street
Austin, TX 78701
Victor L. Goode
NAACP
4805 Mt. Hope Drive
Baltimore, MD 21215
Gary L. Bledsoe
POTTER BLEDSOE, LLP
316 West 12th Street
Suite 307
Austin, TX 78701
Counsel for Appellees Texas
State Conference of NAACP
Branches, et al.
March 28, 2018
Pamela S. Karlan
Counsel of Record
Jeffrey L. Fisher
David T. Goldberg
STANFORD SUPREME COURT
LITIGATION CLINIC
559 Nathan Abbott Way
Stanford, CA 94305
(650) 725-4851
karlan@stanford.edu
Jose Garza
Martin Golando
Michael Moran
LAW OFFICE OF JOSE GARZA
7414 Robin Rest Drive
San Antonio, TX 78209
Counsel for Appellee Mexican
American Legislative Caucus
Luis R. Vera, Jr.
LAW OFFICES OF LUIS
ROBERTO VERA, JR.
1325 Riverview Towers
111 Soledad
San Antonio, TX 78205
Counsel for Appellee League of
United Latin American Citizens
Nina Perales
Ernest I. Herrera
MEXICAN AMERICAN LEGAL
DEFENSE AND EDUCATIONAL FUND
110 Broadway Street, Suite 300
San Antonio, TX 78205
Counsel for Appellees Texas
Latino Redistricting Task
Force, et al.
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.