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

Supreme Court briefMar 28, 2018

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No. 17-586

IN THE

Supreme Court of the United States

————

GREG ABBOTT, in his official capacity as

Governor of Texas, et al.,

Appellants,

SHANNON PEREZ, et al.,

Appellees.

————

On Appeal from the United States District Court

for the Western District of Texas

————

BRIEF FOR APPELLEES

(Congressional Districts)

————

JOSÉ GARZA

MARTIN GOLANDO

GARZA GOLANDO

MORAN, PLLC

115 E Travis St., Ste. 1235

San Antonio, TX 78205

Counsel for Appellee

Mexican American

Legislative Caucus, Texas

House of Representatives

DAVID RICHARDS

RICHARDS, RODRIGUEZ &

SKEITH, LLP

816 Congress Ave., Ste. 1200

Austin, TX 78701

Counsel for Appellees

Shannon Perez, et al.

RENEA HICKS

Counsel of Record

LAW OFFICE OF

MAX RENEA HICKS

P.O. Box 303187

Austin, TX 78703

(512) 480-8231

rhicks@renea-hicks.com

MARC E. ELIAS

BRUCE V. SPIVA

ARIA C. BRANCH

PERKINS COIE LLP

700 13th St. NW, Ste. 600

Washington, DC 20005

ABHA KHANNA

PERKINS COIE LLP

1201 Third Ave., Ste. 4900

Seattle, WA 98101

Counsel for Appellees

Eddie Rodriguez, et al.

Additional Counsel Listed on Inside Cover

March 28, 2018

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

ALLISON J. RIGGS

SOUTHERN COALITION FOR

SOCIAL JUSTICE

1415 West Highway 54

Ste. 101

Durham, NC 27707

ROBERT NOTZON

LAW OFFICE OF

ROBERT S. NOTZON

1507 Nueces St.

Austin, TX 78701

VICTOR L. GOODE

NAACP

4805 Mt. Hope Dr.

Baltimore, MD 21215

Counsel for Appellees the

Texas State Conference of

NAACP Branches, et al.

LUIS R. VERA, JR.

LAW OFFICES OF LUIS

ROBERTO VERA, JR.

1325 Riverview Towers

111 Soledad

San Antonio, TX 78205

Counsel for Appellees

LULAC, et al.

GARY L. BLEDSOE

POTTER BLEDSOE, LLP

316 West 12th St.

Ste. 307

Austin, TX 78701

Counsel for Appellees

Congressmembers Eddie

Bernice Johnson, Sheila

Jackson Lee and Al Green

and NAACP Intervenor

Howard Jefferson

J. GERALD HEBERT

J. GERALD HEBERT, P.C.

191 Somervelle St., No 405

Alexandria, VA 22304

MARK P. GABER

439 Elm St. NW

Washington, DC 20001

JESSICA RING AMUNSON

JENNER & BLOCK LLP

1099 New York Ave. NW

Ste. 900

Washington, DC 20001

GERALD H. GOLDSTEIN

GOLDSTEIN, GOLDSTEIN,

& HILLEY

310 S. St. Mary’s St.

San Antonio, TX 78205

DONALD H. FLANARY, III

FLANARY LAW FIRM

1005 South Alamo

San Antonio, TX 78210

JESSE GAINES

P.O. Box 50093

Fort Worth, TX 76105

Counsel for Appellees

Margarita Quesada,

et al.

ROLANDO L. RIOS

LAW OFFICES OF

ROLANDO L. RIOS

115 E. Travis St., Ste. 1645

San Antonio, TX 78205

Counsel for Appellee

Congressman Henry

Cuellar

QUESTIONS PRESENTED

The district court found that two congressional

districts (“CDs”) created by the Texas Legislature in

2011, and subsequently retained by the Legislature in

2013, are legally infirm: CD35 as an unconstitutional

racial gerrymander, and CD27 as an intentional and

effective dilution of Latino voting rights under §2 of

the Voting Rights Act and the Fourteenth Amendment.

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

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

injunctive relief?

2. Did the district court commit clear error in

carefully considering the substantial factual record of

racial predominance in the drawing of CD35, or in concluding no narrowly tailored or compelling justification supported such racial predominance?

3. Did the district court properly find that CD27

violates the Fourteenth Amendment and §2 of the

Voting Rights Act by diluting Latino voting rights?

(i)

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 percent 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.

TABLE OF CONTENTS

Page

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

RULE 29.6 STATEMENT ...................................

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

INTRODUCTION ................................................

STATEMENT ......................................................

SUMMARY OF ARGUMENT .............................

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

I. THE COURT LACKS JURISDICTION

OVER THIS APPEAL ...............................

II. THE 2013 LEGISLATIVE INACTION

WITH RESPECT TO CDS 27 AND 35

DOES NOT SUPPLANT THE 2011

LEGISLATIVE RECORD FROM WHICH

THOSE DISTRICTS DERIVED ...............

III. CD35 HAS BEEN A RACIAL GERRYMANDER EVER SINCE IT WAS

DRAWN IN 2011 ......................................

IV. CD27 HAS ALWAYS BEEN AND STILL

IS IN VIOLATION OF §2 .........................

A. CD27 Intentionally Dilutes the Vote

of Nueces County Latinos ...................

B. CD27 Violates § 2’s Effects Test .........

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

(iii)

TABLE OF AUTHORITIES

CASES

Page(s)

Ala. Leg. Black Caucus v. Alabama,

135 S. Ct. 1257 (2015) ..............................passim

Anderson v. Bessemer City,

470 U.S. 564 (1985) ................................... 48, 49

Bartlett v. Strickland,

556 U.S. 1 (2009) .................................. 25, 40-41

Bear Lake & River Waterworks &

Irrigation Co. v. Garland,

164 U.S. 1 (1896) .......................................

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

137 S. Ct. 788 (2017) .................................

Bush v. Vera,

517 U.S. 952 (1996) ................................... 36-37

Carson v. American Brands, Inc.,

450 U.S. 79 (1981) .....................................

Cooper v. Harris,

137 S. Ct. 1455 (2017) ..............................passim

Covington v. North Carolina,

316 F.R.D. 117 (M.D.N.C. 2016), aff’d,

137 S. Ct. 2211 (2017) ............................... 35-36

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

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

Gunn v. Univ. Comm. to

End the War in Viet Nam,

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

Hunter v. Underwood,

471 U.S. 222 (1985) ................................... 30, 31

TABLE OF AUTHORITIES—Continued

Page(s)

Johnson v. De Grandy,

512 U.S. 997 (1994) ...................................

League of United Latin American

Citizens v. Perry,

457 F. Supp. 2d 716 (E.D. Tex. 2006).......

3, 4

League of United Latin American

Citizens v. Perry,

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

League of United Latin American

Citizens v. Perry,

No. 12A234 (Sept. 7, 2012) .......................

Miller v. Johnson,

515 U.S. 900 (1995) ...................................

Ne. Fla. Chapter of Associated Gen.

Contractors of Am.

v. City of Jacksonville,

508 U.S. 656 (1993) ...................................

Oneida County v. Oneida Indian

Nation of New York State,

470 U.S. 226 (1985) ...................................

Perry v. Perez,

565 U.S. 388 (2012) ......................... 5, 17, 18, 41

Personnel Administrator of

Massachusetts v. Feeney,

442 U.S. 256 (1979) ......................................

Pierce v. Underwood,

487 U.S. 552 (1988) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

Posadas v. Nat’l City Bank of N.Y.,

296 U.S. 497 (1936) ...................................

Reno v. Bossier Parish School Board,

520 U.S. 471 (1997) ...................................

Shaw v. Hunt,

517 U.S. 899 (1996) ............................. 39, 42, 52

Shaw v. Reno,

509 U.S. 630 (1993) ............................. 28, 35, 36

Texas v. United States,

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

vacated on other grounds, 570 U.S. 928

(2013) ......................................................... 19, 34

Thornburg v. Gingles,

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

Trump v. Int’l Refugee Assistance Project,

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

Univ. of Texas v. Camenisch,

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

Village of Arlington Heights v.

Metropolitan Housing

Development Corp.,

429 U.S. 252 (1977) ...................................

Walters v. Nat’l Ass’n of Radiation

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

CONSTITUTION

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

vii

TABLE OF AUTHORITIES—Continued

STATUTES

Page(s)

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

28 U.S.C. § 1292 ........................................... 26, 27

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

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

§ 2, 52 U.S.C. § 10301 ..............................passim

§ 5, 52 U.S.C. § 10304 ................... 13, 16, 19, 31

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

ch. 1, 2011 Tex. Gen. Laws 5091-5180 ..... 3, 28

RULES

Fed. R. Civ. P. 52(a)......................................

Fed. R. Civ. P. 65(d)......................................

COURT FILINGS

Defendants’ Advisory Regarding Interim

Redistricting Plans, Perry v. Perez, Dkt.

No. 605 (W.D. Tex. Feb. 6, 2012) ..............

Opposition to Application for Emergency

Stay, LULAC v. Perry, No. 12A234 (Sept.

12, 2012) ....................................................

Reply Supporting Jurisdictional Statement,

Abbott v. Perez, No. 17-626 (Dec. 13,

2017) .......................................................... 27, 35

U.S. Post-Trial Br., Perez v. Perry, Dkt. No.

1279 (W.D. Tex. Oct. 30, 2014) .................

viii

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Page(s)

1A Norman J. Singer & J.D. Shambie Singer,

Statutes and Statutory Construction (7th

ed. 2009) ............................................... 29-30, 31

INTRODUCTION

This appeal is not about a statewide congressional

map called Plan C235. Nor is it about a “court-drawn”

redistricting plan at all. Rather, this appeal is about

two specific congressional districts, both drawn lineby-line and block-by-block by the Texas Legislature in

2011 in the exact configuration they maintain to this

day. Whether the plan-wide label slapped onto the

congressional map is C185 or C235, these two districts

are the same, occupying the same territory and containing the same voters that the 2011 Legislature

corralled into them.

In the State’s telling, there was a brief, shining

moment in 2013 when Texas history reversed course

and the Texas Legislature fell all over itself to conform

state conduct to a federal court’s provisional observations. The district court rightly saw through the 2013

masquerade.

By and large, the days are long past when racially

invidious policies are openly declared. Instead they are

couched in pretext, and the only way to unmask

pretext is to pull back the curtain and see what facts

lie behind it. This task—distinguishing appearance

from reality—is assigned to district courts, charged

with sorting through the purported facts and witness

testimony to ferret out unlawful racial classifications

and racial discrimination.

The State and its new United States ally are

opportunistically inconsistent in their treatment of

appearance versus reality. In asking this Court to

review this premature appeal, they argue that regardless of the outward appearance of the lower court’s

ruling, this Court should look beyond the words and

give it a “practical” reading to find it has jurisdiction.

Their emphasis on the practical effects of government

action, however, falls away in their substantive argument. There they argue that the Court must proceed

formalistically and take at face value whatever the

State purveys as justification for its redistricting

actions. This Court, they contend, must accept the

Legislature’s ritualistic 2013 ratification of the district

court’s plainly provisional interim map order as a

slate-wiping exercise and not as what the district court

saw it to be: an effort to throw up a smokescreen to

obscure the motives underlying the 2011 legislative

redistricting plan as to two congressional districts left

entirely unaltered by the 2013 bill.

The State further insists that this Court accept its

formalistic accounting method for creating minority

opportunity districts, that, if accepted at face value,

gives the technical appearance of compliance with the

Voting Rights Act and masks the practical reality—

and practical effect—of a legislative attempt to undermine the Act. Much as the Legislature used a demographic “nudge factor” to paint a false picture of

the 2011 version of CD23 as a minority opportunity

district when it was specifically micro-designed to

achieve the opposite result, the State argues that its

drawing of CD35 was tailored to comply with its

obligations under §2, when the reality, unearthed by

the district court, was that CD35 was designed to

achieve a double-whammy: eliminate a preexisting

crossover district where minority voters’ rights were

already protected and trade away the voting rights of

nearly a quarter million Latinos in Nueces County two

hundred miles away by stranding them in a new

district where they are submerged in a sea of Anglo

bloc voting.

Appellees lay out the facts below in significant detail

because, in a case like this where appearance is pitted

against reality, the facts are all the more important.

STATEMENT

At the center of this appeal are two Texas congressional districts in the statewide map labeled Plan

C235: CDs 27 and 35. The district court found constitutional and statutory violations in the two districts

but has not yet determined an appropriate remedy.

The State, now joined by the United States, seeks preremedy reinstatement of the districts.

CDs 27 and 35 are creatures of the 2011 Legislature.

Sections 27 and 35 of Article II of the 2011 congressional redistricting bill establish the two districts and

specify their census geography. Act of June 20, 2011,

82nd Leg., 1st C.S., ch. 1, 2011 Tex. Gen. Laws 50915180. When the Legislature amended the bill in 2013,

it bypassed these two sections altogether, leaving CDs

27 and 35 in the “exact same configuration” since 2011.

C.J.S. App. 113a.1

A. In League of United Latin American Citizens v.

Perry, 548 U.S. 399 (2006) (“LULAC v. Perry”), the

Court invalidated Texas Congressional District 23

as a violation of §2 of the Voting Rights Act, 52 U.S.C.

§ 10301. On remand, the district court remedied the

violation, adjusting the boundaries of five Texas congressional districts. 457 F. Supp. 2d 716 (E.D. Tex.

2006). The court’s changes were incorporated into a

“C.J.S. App.” refers to the appendix to the Jurisdictional

Statement in Case No. 17-586. “Supp. App.” refers to the supplemental appendix (containing the findings of fact) to the Motion to

Dismiss or Affirm in Case No. 17-586. “J.A.” refers to the Joint

Appendix.

statewide map called Plan C100 (the “benchmark”

plan). It contained six Latino opportunity districts in

the region of the state with the heaviest concentration

of Latino voters.2 This is the large swath of South and

West Texas radiating in a fan south- and southwestward from Travis County—but not including it—that

is referred to in this litigation as the South and West

Texas “envelope.” 457 F. Supp. 2d at 720; Supp. App.

428a.3 The benchmark plan remained in effect through

2010.

Benchmark CD27 ran south along the Texas Gulf

Coast, from Nueces County in the north to Cameron

County on the Mexican border. It had been in this

southern orientation—and had been a Latino opportunity district under §2—since 1982. Supp. App. 287a88a, 299a. Until 2010, Nueces County Latinos had

been electing their congressional candidates of choice

for more than a quarter century. Id. 294a.

A minority opportunity district under §2 is one in which

minority voters comprise a majority of eligible voters and have a

reasonable opportunity to elect candidates of their choice. See,

e.g., Johnson v. De Grandy, 512 U.S. 997, 1014 n.11 (1994). As to

terminology, this brief uses the term “Latino” instead of the term

“Hispanic” often used in the proceedings below, but quotes and

shorthand references, such as “HCVAP,” derived from “Hispanic”

are left in the form used below.

The district court described the South and West Texas

envelope as the “large triangular area contained by a line starting

in Nueces County, running south to Cameron County, then along

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

County to Bexar County, then northeast to the Hays/Travis

County line, and back to Nueces County.” Supp. App. 298a.

Travis County lies north of the envelope in Central Texas. There

is a seventh Latino opportunity district in another part of the

state—CD29 in Harris County—that is not at issue in this

appeal.

Benchmark CD25 was anchored in Travis County

(home to Austin) in Central Texas and ran southeast

from there through less populated counties. Most of

its population was in Travis County. Supp. App. 301a.

It functioned as a “crossover district.” Id. 340a, 428a;

C.J.S. App. 175a-76a; Br. for State Appellants (“Br.”)

47 n.12.

The last round of congressional elections conducted

under Plan C100 in 2010 was a wave election for

Republicans. Supp. App. 25a. One exception was in

benchmark CD25, where the Anglo Democratic incumbent was reelected with the support of Latino and

African-American voters. Id. 301a, 428a. But elsewhere, Democratic incumbents fared poorly, including

in districts in South and West Texas where Latino

voters who had an opportunity to elect candidates of

their choice failed to do so in 2010. In benchmark

CD27, an Anglo Republican, Blake Farenthold, won

against the Latino candidate of choice, Democratic

incumbent Solomon Ortiz, by a less than 1 percent

margin. Id. 26a, 291a-92a. In benchmark CD23, a

Latino opportunity district spread across West Texas

from San Antonio to El Paso, the Latino-preferred

Democratic incumbent also lost to a Republican challenger. Id. 25a.

B. Release of the 2010 decennial census showed

that the state’s population had increased by 4.2

million over the previous decade. Supp. App. 457a.

Its population contained no racial or ethnic majority.

Dkt. No. 277 at 22 (Stip. 76). The surge in population

yielded Texas four new congressional seats. Perry v.

Perez, 565 U.S. 388, 390 (2012).

This massive growth in population was disproportionately African-American, Latino, and AsianAmerican. Ninety percent of the statewide population

growth was attributable to minorities, with Latinos

alone accounting for 65 percent of the growth. Supp.

App. 16a, 457a. Minorities further accounted for 70

percent of the growth in citizen voting age population

(“CVAP”). Id. 459a. The Anglo share of CVAP, meanwhile, declined in every benchmark district. Id. 460a.

In the South and West Texas envelope, Latinos

accounted for almost all of the CVAP growth. Supp.

App. 461a. All six of the benchmark plan’s Latino

opportunity districts in the envelope were overpopulated. Id. 430a-31a. Collectively, they were so overpopulated that enough population was left over to compose

nearly three-quarters of a new ideal-size district. Id.

Travis County also had significant population growth

but, in contrast to other major areas of the state, the

pace of Anglo growth essentially equaled the pace of

Latino growth. Supp. App. 460a-61a.

C. As the 2011 redistricting process began, Republicans held overwhelming majorities in the Texas

Legislature and were “hostile to the creation of any

minority districts.” Supp. App. 38a, 476a. They and

their redistricting leaders—Representative Solomons

in the House and Senator Seliger in the Senate—

equated minority opportunity districts with Democratic districts and therefore opposed creation of any

new congressional district that would be dominated by

voters of color unless they deemed it required by §2.

Id. 438a, 476a.4

Solomons and Seliger, along with Solomons’ chief mapdrawer

Ryan Downtown, were “the primary persons responsible for

drawing and making decisions about the congressional map.”

Supp. App. 431a.

The actual mapdrawing job fell to the House

redistricting committee, chaired by Representative

Solomons. Supp. App. 152a. Chairman Solomons,

unfamiliar with redistricting law and Voting Rights

Act requirements, appointed staffer Ryan Downton,

also lacking in redistricting experience, the primary

mapdrawer. Id. 44a, 46a, 152a.

Four foundational principles set the stage for the

drawing of the new congressional plan. First, Downton,

with Solomons’ and Seliger’s acquiescence, used an automatic numerical metric for deciding what constituted

a minority opportunity district under §2. His “sole

criterion” for determining the existence of such a district was whether its population was majority CVAP

for a single minority, “even if it never elected the

minority’s candidate of choice.” Supp. App. 437a.

Thus, to classify a district as a Latino opportunity

district, the Legislature’s chief mapdrawer set a quota

of 50 percent or more HCVAP, regardless of actual or

anticipated election outcomes. See, e.g., id. 383a.

Second, the proposal to create a new minority

opportunity district in the Dallas-Fort Worth (“DFW”)

area, Supp. App. 253a, 256a, was rejected as not

required by §2. Id. 258a-59a, 260a, 286a.

Third, after the decision not to draw a new minority

opportunity district in the DFW area, Solomons established a “3-1 rule” for the new districts. Regardless of

population growth, only one of the four new seats

would be a district favoring Democrats and, perforce,

it would be a minority opportunity district. Supp. App.

286a, 435a. “Once Solomons was advised that only one

new VRA district was required, Solomons would only

consider a map that increased the net number of

Republican districts by three.” Id. 439a; see also C.J.S.

App. 172a (objective was to create a 3-1 map that

“increased the number of Republican seats by three

and Democrat seats by only one”); id. 220a n.73

(mapdrawers “adhere[d] to a 3-1 map policy”).

Fourth, there was a political imperative to protect

two Republican incumbents when drawing districts in

the South and West Texas envelope. Those incumbents, Canseco and Farenthold, had won unexpected

victories in 2010 in Latino opportunity districts

(benchmark CDs 23 and 27, respectively) but neither

was the Latino voters’ candidate of choice. Supp. App.

25a-26a. The mapdrawers knew that these districts

had to be reconfigured to protect the Republican

incumbents, Supp. App. 151a, 293a, 342a; C.J.S. App.

143a, 191a-92a, 393a, and that the key to this was to

draw in Anglo voters—and draw out Latino voters—in

and near the envelope.5

D. Downton, the mapdrawer, was assigned the task

of incorporating these four basic instructions into a

statewide map. Specifically, he was to eschew any new

district for minorities in the DFW area, use the brightline 50 percent metric to measure what constitutes a

minority opportunity district, allow a net gain of only

These problems were highlighted as redistricting strategizing

got underway in late 2010 in two memos by Eric Opiela, the

Republican congressional delegation’s redistricting emissary to

the Legislature and a regular confidante of Downton. Supp. App.

442a. The first memo, directed primarily at CD23, suggested the

use of a “nudge factor” to protect Canseco by “nudging” high

turnout Latino voters out of the district and swapping in low

turnout Latino voters, increasing the total HCVAP of benchmark

CD23 but lowering the likelihood the Latino-preferred candidate

would win. Id. 27a-28a, 431a-32a. The second memo, issued a few

days later, highlighted the “problems inherent in trying to protect

both Farenthold and Canseco” and identified the need to find

more “Anglo voters”—a term used four times in the short memo—

somewhere in or near the envelope. Id. 29a.

one Democratic district (deemed synonymous with a

minority opportunity district) in or near the South and

West Texas envelope, and protect both Canseco and

Farenthold’s incumbencies by drawing new districts in

which enough Anglos were added so they would win.

His solution in drawing CDs 27 and 35—adopted by

the 2011 Legislature, signed by the Governor, and left

untouched ever since—is the one invalidated by the

district court and now before this Court for review.

1. DFW Area. As set forth above, the proposal to

create a minority opportunity district in the DFW area

had been flatly rejected. Implementing this instruction, however, was no easy feat in light of the massive

minority population growth in the area, which

accounted for adding a new seat there, Supp. App.

286a. Using racial data, the mapdrawers sliced and

diced the minority population to “decrease current and

future minority voting strength,” and district lines

“pulled strangely-shaped minority population areas

out of certain districts in order to submerge them

in larger Anglo populations and to reduce minority

voting strength.” C.J.S. App. 400a; Supp. App. 286a.

2. CD23. In CD23, two of the basic instructions

converged. Mapdrawers used the bright-line 50 percent

HCVAP metric for what would be deemed a Latino

opportunity district and, working within that framework, assiduously traded precincts in and out to implement the “nudge factor” concept to protect Canseco’s

incumbency. Working closely with others, Downton

put the nudge factor to work, painstakingly identifying

precincts with high Latino presence and low Latino

turnout, and then artfully manipulating district lines

to increase HCVAP percentage while excluding high

turnout Latino precincts from the district. C.J.S. App.

106a, 145a; Supp. App. 391a.6 The Legislature then

assigned CD23 to the category of “Latino opportunity

district,” even though it was drawn for the specific

purpose of ensuring that the Latino-preferred candidate

would not win. C.J.S. App. 146a. In other words,

borrowing from the 2003 legislative playbook, the

Legislature reconfigured benchmark CD23 “to protect

a Republican candidate who was not the Latino candidate of choice from the Latino voting majority in the

district.” Id. 144a; see also id. 147a-48a (CD23 reconfigured to “create the facade of a Latino opportunity

district”). The district had been “nudged” from one

that performed for Latino voters to one that would not.

Even with the putative Latino opportunity district

in CD23, the Legislature knew that §2 would require

one more Latino opportunity district in the South and

West Texas envelope, for a total of seven. Supp. App.

435a; C.J.S. App. 176a, 392a.

3. CD27 and Nueces County. Nueces County (home

to Corpus Christi) contains 206,000 Latinos, 133,370

of them citizens of voting age, and is overwhelmingly

Latino in total population. Supp. App. 294a; JX-100.2.

Benchmark CD27, which housed the entirety of

Nueces County, was a Latino opportunity district that,

as of 2011, was overpopulated by only 43,500 people.

Supp. App. 293a. Voting in Nueces County is highly

polarized along racial lines. Id. 300a; C.J.S. App. 183a,

185a.

The mapdrawers knew that the obvious solution to

the §2 problem the State faced in the South and West

Texas envelope was to leave Nueces County, or most

of it, in the envelope and in its long-time southward

The district court found Downton’s denials of the cohesion

and turnout manipulation “not credible.” C.J.S. App. 146a n.20.

orientation. Supp. App. 297a. As the district court

explained: “Including the population of Nueces County

in the envelope makes it easier to draw seven Latino

opportunity districts under §2,” without extending

beyond the envelope into Travis County. Id. 300a.

Instead, however, Downton removed Nueces County

entirely from the South and West Texas districts and

drew it into a district oriented northward, out of the

envelope. Supp. App. 293a, 298a-99a; see J.A. 450a.7

The geographic details, down to street level, of individual

districts in Plan C235 are available online at the public Texas

Redistricting website maintained by the Texas Legislative

Council. See District Viewer interactive map: Plan C235, http://

www.tlc.state.tx.us/redist/districts/congress.html.

While mapdrawers and legislators understood that

they could have protected Farenthold in a northwardoriented district while at the same time retaining most

of Nueces County—and nearly all of its Latinos—in an

opportunity district oriented southward, Supp. App.

297a, they deliberately chose not do so, id. 299a-300a.

The “primary and dominant motive” driving this

decision “was to place the incumbent Farenthold, who

lived in Nueces County and would likely be ousted by

the existing Latino majority, into an Anglo-majority

district (and thus to take away the opportunity to elect

that Nueces County Latinos had enjoyed).” C.J.S. App.

191a. The method chosen to effectuate this purpose

was to strand all Nueces County Latinos—nearly a

quarter of a million of them—in a new majority-Anglo

CD27 where they have “no opportunity” to elect

candidates of their choice. Id. 190a; Supp. App. 294a96a, 433a.

To ensure that the purposeful elimination of benchmark CD27 as a Latino opportunity district would

not result in one less such district in the envelope,

Downton and the Legislature substituted a new

CD34—a Latino opportunity district—running north

along the Gulf coast from Cameron County on the

Mexican border south of Nueces County. Supp. App.

299a. Having satisfied their objective of protecting

Farenthold by drawing Nueces County Latinos out of

the envelope, the mapdrawers set to the task of

creating the §2-mandated seventh Latino opportunity

district.

4. CD35, Benchmark CD25, and Travis County.

For their new Latino opportunity district, Downton

and the Legislature looked to Travis County. To be

sure, the Legislature had “no reasonable basis” for

concluding that a §2 Latino opportunity district should

be drawn in the county. Supp. App. 340a, 342a. Nor

was it necessary to draw any of Travis County into a

new Latino opportunity district in order to reach the

objective of adding one in the South and West Texas

envelope. Id. 340a, 440a.8 But the Legislature did

it anyway. It used race as a tool not to comply with

§2, but to obtain political advantage by creating the

“facade of complying with § 2 while actually minimizing the number of districts in which minorities could

elect their candidates of choice despite the massive

minority population growth that had occurred

throughout the state.” C.J.S. App. 178a; see also id.

110a (putting Travis County population into CD35

“use[d] race as a tool for partisan goals”).

Under the benchmark plan, Travis County already

anchored benchmark CD25, the crossover district

where, with Anglo crossover support, Latinos and

African Americans were able to elect their congressional candidate of choice. Supp. App. 306a. And, in

stark contrast to the burgeoning Latino growth in the

South and West Texas envelope, which had the most

concentrated HCVAP increase in the State, id. 461a,

Travis County was not an area where Latino growth

hugely outpaced other growth. C.J.S. App. 169a.

Even more importantly, Travis County is the only

locale in the state with legally insignificant levels of

racially polarized voting as a whole. C.J.S. App. 175a.

“Anglo voters do not show high levels of cohesion and

do not vote as a bloc against the minority-preferred

candidates.” Supp. App. 340a. In short, Travis County

Downton “did not think CD35 was necessary for § 5

compliance, and he was not sure if it was required by § 2.” C.J.S.

App. 178a-79a n.45. He did not have “any evidence . . . to support

the inclusion of Travis County in the new § 2 district when he

decided to place the district there.” Id.

is the notable exception to the pattern of racially

polarized voting that pervades Texas. C.J.S. App. 21a.

Despite these facts, the mapdrawers deliberately

dismantled benchmark CD25 by drawing the state’s

only new Latino opportunity district, CD35, into

Travis County. C.J.S. App. 110a (CD35 placement was

to “intentionally destroy” benchmark CD25). The new

plan divided Travis County, and its more than one

million residents, into five congressional districts,

none anchored in the county. Supp. App. 333a.

The mechanism used to draw CD35 so as to destroy

CD25, moreover, was race. Downton testified that he

purposely selected Anglo Democrats in the county and

separated them into different districts. Supp. App.

318a. He turned on the software’s block-level racial

shading function to search out Latinos in Travis County.

Id. 337a-38a. Using this capability, he reached into

north central Austin with a narrow “squiggle” that had

no other purpose than to grab an area that was 90-100

percent Latino. Id. 318a; C.J.S. App. 167a. He divided

a Catholic university precinct to carve its Latinodominated dorms into CD35. C.J.S. App. 167a. He

disregarded state House district lines, and carved

those areas into several congressional pieces, because

the House lines did not mesh with his racial linedrawing objective. Supp. App. 320a. Analysis of the

Travis County divisions show that race was twice as

likely as party vote to predict whether a voting

precinct ended up in CD35. Id. 337a. “The higher

percent Hispanic a VTD, the more likely it was

included in CD35, and the higher percent Anglo a

VTD, the less likely it was included in CD35.” Id.9

Congressional district lines in the county did not align

“with any recognizable communities other than race.”

Id. 320a. The net effect of the mapdrawers’ race-based

configuration of CD35 in Travis County was to reduce

by 63,000 the number of Travis County Latino voters

with the opportunity to elect their candidates of

choice. Id. 336a.

The southern end of CD35, in south San Antonio,

was equally race-based in its design. C.J.S. App. 169a.

The district runs south out of Travis County in a 3mile wide strip along Interstate 35 for fifty miles, then

funnels through a narrow neck in northeastern Bexar

County because the area contains low concentrations

of Latinos. Id. 414a; Supp. App. 318a. The district then

widens to include a large concentration of Latinos on

the south side of San Antonio.

As the district court concluded, CD35 was also the

least compact of all of the districts drawn in 2011.

Supp. App. 339a. It retained this distinction in Plan

The expert analysis by Dr. Ansolabehere in his 2014 report is

the underpinning for these court findings. See J.A. 494a-97a.

C235, where it remained exactly as it has been since

drawn in 2011. JX-100.10.

In short, as the district court found, it is “clear” that

race predominated in drawing CD35. C.J.S. App. 170a;

see also id. 166a. This finding “applies to the district

as a whole.” Id. 170a n.36.

E. The 2011 regular legislative session ended without enactment of a congressional plan, but on that

same day the Governor called a special session to

begin immediately. Supp. App. 154a. The Legislature

passed its 2011 congressional redistricting bill 24 days

later, labeling it Plan C185, and the Governor signed

it in mid-July. Id. 228a-29a. Because §5 of the Voting

Rights Act was still operative at the time, the State

filed suit in federal court in the District of Columbia

seeking preclearance of its plan. Id. 229a.

Lawsuits challenging the enacted congressional and

state House plans under §2 and the Equal Protection

Clause also were filed in federal district courts in

Texas. Ultimately, nine separate plaintiff groups were

joined in one consolidated case before the three-judge

district court in San Antonio.10

The San Antonio court held initial hearings regarding the congressional and House plans in September

2011. But by late October, the district court in the D.C.

preclearance lawsuit had not yet ruled, and it became

increasingly clear that the San Antonio court would

have to craft interim plans for the upcoming elections.

The court was forced to modify parts of the election

The United States joined the plaintiffs in challenging the

2011 plan but did not challenge the 2013 plan. One of the United

States’ claims was that CD27 constituted intentional vote dilution in violation of §2 and the Constitution. U.S. Post-Trial Br.,

Dkt. No. 1279 at 26-28 (Oct. 30, 2014).

schedule but held onto the scheduled March primary

date. In late November 2011, it ordered an interim

plan for congressional elections, Dkt. No. 544, but the

State appealed to this Court and, two weeks later,

obtained a stay of the plan’s implementation. Soon

after, the district court again adjusted election deadlines and moved the primary election to early April.

Dkt. No. 563 at 7.

On January 20, 2012, in Perry v. Perez, this Court

vacated the district court’s interim plan order and

remanded the case for the district court to develop

an interim plan under the new standards it had

announced. The district court promptly vacated its

order for an early April primary and gave the parties

only fourteen days to submit “agreed-upon interim

maps.” Dkt. No. 583.

A subset of plaintiffs negotiated a compromise with

the State on an interim map and presented it to the

court. C.J.S. App. 6a.11 The compromise plan’s principal changes were centered on the DFW area and

CD23. It included no changes whatsoever to CDs 27

and 35.

The State admitted the compromise plan was “far

from perfect,” but still supported it as “adequate

for [its] intended purpose,” which was to allow the

already-delayed 2012 primary elections to finally proceed. Dkt. No. 605 at 4. According to the State, “in the

In addition to the State, the main proponents of the compromise plan were the Task Force plaintiff group and Congressman

Cuellar. Defendants’ Advisory Regarding Interim Redistricting

Plans, Dkt. No. 605 at 3 (Feb. 6, 2012).

short term” Texas voters would be better served. Id. at

20.12

Barely a month after Perry’s remand, in the midst of

numerous election delays, and over objections from

most plaintiffs, the court “accept[ed] the compromise

plan.” C.J.S. App. 368a. After modifying it for purely

technical reasons, the court issued Plan C235 as the

interim plan for the 2012 elections. CDs 27 and 35

remained exactly the same as the State drew them in

2011. Id. 113a.

The court expressly warned the parties that the

“compromise plan” was by no means a “final ruling on

the merits of any claims,” and reflects only “preliminary determinations” that “may be revised upon full

analysis.” C.J.S. App. 367a-68a. In allowing CD35 to

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

reiterated that whether it was a racial gerrymander

was a “close call,” id. 409a. The court was equally wary

of its preliminary ruling on CD27, noting that the §2

challenges were “not without merit” and that its ruling

allowing CD27’s interim use was only effective “at this

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

the “preliminary” conclusions about Plan C235 were

not the court’s final word on the constitutional and §2

The State reiterated this view of the interim plan to this

Court. After one plaintiff group petitioned for a stay of the

interim plan order, the State successfully opposed the stay primarily on the ground of short-term necessity. LULAC v. Texas,

No. 12A234. “The interim maps were designed to provide an

interim solution for the upcoming elections. . . and need to be used

for the purpose for which they were designed.” Opposition to

Application for Emergency Stay 3 (Sept. 12, 2012) (emphasis

added). According to the State, “[t]he whole point of drawing

interim maps was to . . . have certainty about the shape of their

districts for the upcoming election process.” Id. at 10.

claims, particularly with respect to CDs 27 and 35.

Id. 6a (quoting 2012 interim order).

Several months later, in late August 2012, the D.C.

court denied preclearance, unanimously concluding

that Plan C185, including CDs 27 and 35, “was enacted

with a discriminatory purpose.” Texas v. United States,

887 F. Supp.2d 133, 159 (D.D.C. 2012), vacated on

other grounds, 570 U.S. 928 (2013). Pointedly, the

court explained that “[t]he parties have provided more

evidence of discriminatory intent than we have space,

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

was “persuaded by the totality of the evidence that the

plan was enacted with discriminatory intent,” id. at

161. The court further determined that Texas had violated §5 by dismantling the Travis County-anchored

benchmark CD25, which was home to a “tri-ethnic

crossover coalition” where minority voters had had an

opportunity to elect their congressional candidate of

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

F. In 2013, while the preclearance appeal was

pending with this Court, the Governor called a special

legislative session—on one day’s notice—for the

express purpose of repealing Plan C185 and adopting

Plan C235. Supp. App. 231a; C.J.S. App. 40a. This was

only two years after Plan C185’s enactment; legislative leadership was the same and so were 75 percent

of the legislators. C.J.S. App. 38a n.37; Dkt. No. 1442,

Stips. 1-4 (June 28, 2017). The Legislature effectively

amended Plan C185 by adopting the changes made in

Plan C235. Half of Plan C185’s districts, including

CDs 27 and 35, were left in place.13

The census block assignments in ten districts, including

CD35, are the same in Plans C185 and C235. Another eight

The district court found that “[t]he Legislature did

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

legally compliant plans free from discriminatory taint,

but as part of a litigation strategy.” C.J.S. App. 40a.14

That litigation strategy was to evade the same findings of discriminatory intent in the San Antonio court

that had already been made by the D.C. court, and to

claim protection from the district court’s preliminary

approval of the interim plan to insulate the State from

further liability. By adopting the interim plan, “however flawed,” the State sought to “prevent Plaintiffs

from obtaining relief for purposeful racial discrimination.” Id. 44a.

The district court’s express warnings about the limitations of its 2012 interim plan did not go unnoticed

by the Legislature’s own attorney. See J.A. 437a-48a.

In public testimony, he meticulously walked the legislators through the court’s caveats and their implications for the legislative action under consideration.

The Legislature, he explained, could not rely on

the district court’s 2012 interim plan order as proof

the plan complied with the Voting Rights Act or

Constitution. The district court, he said, had been “in

a little bit [of a] tricky [position] because [it] had not

made full determinations, . . . had not made fact

findings on every issue, had not thoroughly analyzed

all the evidence but they had to make some best-case

guesses.” C.J.S. App. 43a (citation omitted).

districts, including CD27, are assigned the same populated

census blocks in both plans. Dkt. No. 1442, Stips. 7-8.

This unanimous finding was based in part upon documents

previously withheld by the State but ordered released in the

middle of trial, and upon the district court’s assessment of the

trial testimony of Rep. Drew Darby—a redistricting committee

chairman for the 2013 special session. C.J.S. App. 44a-45a n.45.

“[W]illfully ignor[ing] those who pointed out deficiencies,” C.J.S. App. 45a n.45, including its own attorney,

on June 24, 2013, the Legislature ratified Plan C235,

including the 2011 versions of CDs 27 and 35.

G. The district court subsequently conducted two

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

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

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

configuration of CD35 and CD27 remains in Plan

C235” as in Plan C185. C.J.S. App. 113a. The district

court’s March 2017 ruling on Plan C185 established

that intentional discrimination infected the 2011

redistricting plan, describing the intentional fracturing of communities of color and race-based line

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

DFW area “race was used as a proxy for political

affiliation . . . intentionally to dilute minority voting

strength”); id. 148a-49a (mapdrawers’ “intentional[]

targeting [of] Hispanic voter turnout and cohesion” in

CD23 “bears the mark of intentional discrimination”).

The court’s August 2017 ruling on Plan C235 effectively upheld the interim map’s compromise changes

to CD23 and the DFW-area districts. But the court

found differently for CDs 27 and 35. It sustained the

challenges leveled against these districts since the

case’s beginning in 2011. It explained that the Legislature could have complied with its §2 obligation to draw

seven Latino opportunity districts in the South and

West Texas envelope without extending into Travis

County by retaining Nueces County in the envelope

districts. Supp. App. 300a. In finding that the legislature’s “offset” Latino opportunity district, CD35,

was an unconstitutional racial gerrymander, the court

found that CD35’s location “was not to address § 2

concerns, but to intentionally destroy an existing

district [benchmark CD25] with significant minority

population.” C.J.S. App. 110a.15

The court struck down CD35 as a racial gerrymander in both plans. See C.J.S. App. 115a (“Although

Plan C235 was enacted in 2013, the decision as to

which voters to include within CD35 was made in

2011, and that remains the proper time for evaluating

the district[.]”). The court found that the core AfricanAmerican community in Austin was divided from

historical communities of interest and “effectively

neutered” by grouping it with a distant metropolitan

area with which it did not share interests. Supp. App.

335a. It concluded that “race subordinated other

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

342a, where minority populations were “fractured” and

Latino voters carved out for inclusion in a new

majority-minority district without any Voting Rights

Act justification because Anglo bloc voting in

opposition to minority voter preferences is absent, id.

334a, 340a.

As to CD27, the court found that it had been

converted from a Latino opportunity district into one

where “Latino voters have no opportunity to elect their

preferred candidates.” C.J.S. App. 190a. The effect was

to dilute the voting strength of the more than 200,000

Nueces County Latinos stranded in the district. Id.

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

an incumbent who was not the candidate of choice of

The court incorporated the findings of fact and opinion that

issued with its Plan C185 ruling a few months earlier into the

Plan C235 ruling, and the original dissenting panel member

agreed that the opinion and those findings constitute the law of

the case. C.J.S. App. 14a n.13. The district court was unanimous

in its new factual findings regarding the purpose of the 2013

Legislature’s litigation strategy.

those Latino voters.” Id. 190a. After the Plan C235

trial, the court found that this discriminatory intent

“carr[ied] over” to the 2013 adoption of identical district lines, “purposefully . . . depriv[ing] plaintiffs of

any remedy.” Id. 46a, 116a.

H. The district court explained at the end of its Plan

C235 ruling that its previous bifurcation of the case

into separate liability and remedial phases meant that

its ruling was only addressing the legal violations in

C235. C.J.S. App. 119a. It gave the Legislature an

opportunity to remedy those violations found in the

ruling. This was hardly the first time it had issued

such an invitation. Four months earlier, after it had

issued its Plan C185 ruling, the court indicated that

the State should be prepared to discuss whether the

Legislature—then sitting in regular session—“intends

to take up redistricting . . . to remedy any [C185

violations] that persist in the 2013 plans” at an

upcoming hearing. Dkt. No. 1352. This request was

met with legislative silence. The court again invited

the Legislature to act following this Court’s decision in

Cooper v. Harris, 137 S. Ct. 1455 (2017), see Dkt. No.

1395, but the Legislature again declined.

At a scheduling hearing for the C235 trial, the

State’s attorney told the court that October 1, 2017,

was a fixed date for any remedial plan to be in place.

Hr’g Tr. 66 (Apr. 2, 2017). Thus, when it issued the

C235 ruling, the court knew that the state-declared

deadline was only a month and a half away. Even

though the State had turned a deaf ear to its earlier

inquiries about a legislative remedy, the court once

again invited a legislative solution, asking the State to

advise within three business days—by August 18—

whether a special session would be called to consider

remedying the violations. C.J.S. App. 118a. Absent

such notification, the court indicated that it intended

to hold a remedy hearing on September 5. Id.

Upon the State’s petition, this Court stayed further

proceedings.

SUMMARY OF ARGUMENT

Texas appeals from an order that found two legal

violations in a redistricting map. The order enjoined

nothing. Nor did it provide a remedy for the violations

it found. Whether and when to issue an injunction and

what remedy was needed for the two legal violations

were deferred so the court could hold hearings where

those matters could be addressed. This Court lacks

jurisdiction over an appeal of this sort.

If the Court decides that it has jurisdiction, then

it will be reviewing the constitutional and statutory

validity of two specific districts, CDs 27 and 35, in a

statewide congressional map labeled Plan C235. Both

districts were in the same place with the same people

in the earlier statewide map labeled Plan C185.

The Court’s review of the two districts’ validity

is under the clearly erroneous standard set out in

Rule 52(a) of the Federal Rules of Civil Procedure.

The State cannot escape review under that standard

by the ploy of using a perfunctory 2013 legislative

“ratification” of an interim court map that did not even

touch the two districts at issue on appeal. The State

and the United States try to change the Court’s focus

by claiming that the plan is “court-drawn” and, hence,

the State is owed judicial deference in having adopted

it. But only half of the districts in the court’s one-timeonly plan were “court-drawn.” The other half, including the two districts at issue here, were “legislativelydrawn” by the 2011 Texas Legislature. The 2013

gambit is nothing but a ruse.

The district court painstakingly reviewed the facts

about the Legislature’s formation of these districts,

the reasons for their configuration, and the effects

of their creation on minority voters. And what its

exhaustive review of the evidence showed is that

Texas’s motivation for its design of CD35, and its

choice of who was in and who was out of it, was overwhelmingly racial. Further, the State had no cognizable compelling interest in creating CD35. Travis

County, the locus of the State’s principal fine-tuning

of the district, is the one major area of the State where

racially polarized voting is legally insignificant. While

the requirements of §2 of the Voting Rights Act may

be the raison d’etre for a race-based district, those

requirements are simply absent here. Indeed, far from

having “good reasons” to believe that §2 compelled the

race-based configuration of CD35 into Travis County,

Ala. Leg. Black Caucus v. Alabama, 135 S. Ct. 1257,

1274 (2015), the Legislature was motivated by the

undisputedly bad reason of “destroy[ing] [an] otherwise effective crossover district[]” where minorities

already were electing their candidates of choice

with the help of crossover Anglo voters, Bartlett v.

Strickland, 556 U.S. 1, 24 (2009).

Section 2 further provides no refuge for the configuration of CD35 where the Legislature knew it had

readily at hand an alternative place to draw a Latino

opportunity district where §2 requirements were easily

met. Unlike in Travis County, Nueces County

is home to extensive racially polarized voting, and a

southward running Latino opportunity district anchored

in Nueces County would have satisfied the State’s §2

obligation. But the State not only refused to take that

ready route, it affirmatively worked to undo the rights

of Latinos in that part of the state. And it succeeded in

its objective. For no reason other than to advance the

election prospects of an Anglo incumbent, it drew a

new district which by its very design would drown out

the votes of the Latino voters who had §2 rights. In

short, the State cynically eliminated the §2 rights of

Latino voters in one part of the State and ostensibly

assigned those rights to voters in another part of the

State where §2 required no remedy. The intentional

vote dilution of Nueces County Latinos in CD27 had

its desired effect and therefore violates §2 from any

angle.

ARGUMENT

I. THE COURT LACKS

OVER THIS APPEAL

JURISDICTION

This Court has no jurisdiction to entertain Texas’s

premature appeal because the district court has not

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

appeals to this Court from three-judge district courts

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

an interlocutory or permanent injunction.” There has

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

order on appeal, see C.J.S. App. 119a, and the court’s

subsequent order denying Texas’s motion for stay

pending appeal, see Dkt. No. 1538 (Aug. 18, 2017)

(“Although the Court found violations in Plan C235,

the Court has not enjoined its use for any upcoming

elections.”) (emphasis added). Under the plain text of

§ 1253, this Court lacks jurisdiction.

The “practical effects” test used in Carson v.

American Brands, Inc., 450 U.S. 79 (1981), to determine whether there had been the denial of an injunction for purposes of appealability under 28 U.S.C.

§ 1292 is inapposite here for at least three reasons.

First, the State’s argument not only finds no basis in

the plain text of § 1253, it directly contradicts the plain

text of § 1292, which expressly excludes from its ambit

instances “where a direct review may be had in the

Supreme Court.” Second, grants of injunctive relief

and denials of injunctive relief are measured by different standards, the former requiring far more detail

and precision. See Gunn v. Univ. Comm. to End the

War in Viet Nam, 399 U.S. 383, 388 (1970) (citing Fed.

R. Civ. P. 65(d)). Third, even if the two provisions were

construed the same way, the liability ruling in the

court below did not grant injunctive relief in any

“practical” sense where the “practical effect” of what a

remedy would entail, who it would affect, and when it

would be implemented remain, to this day, unknown

and unknowable.

To avoid repetition, the Appellees on this brief adopt

by reference the arguments made in opposition to

jurisdiction in Part I of the Appellees’ brief on state

legislative districts, Abbott v. Perez, Case No. 17-626.

II. THE 2013 LEGISLATIVE INACTION

WITH RESPECT TO CDS 27 AND 35 DOES

NOT SUPPLANT THE 2011 LEGISLATIVE RECORD FROM WHICH THOSE

DISTRICTS DERIVED

The State’s central argument is that “any threat of

injury from the 2011 redistricting plans disappeared

when the Legislature repealed them.” Br. 44. With

respect to CDs 27 and 35, this is transparently false.

Where these two districts were first placed by the

Legislature when it enacted them in 2011, and where

they have remained untouched ever since, voters

in those districts have continued to suffer from the

unlawful intent that drove their configuration and the

discriminatory effects that have persisted in every

congressional election this decade.

A. In 2013, the Legislature did precisely nothing

with respect to CDs 27 and 35. Instead, each and every

census block that was pieced together to form CDs 27

and 35 in 2011 was left untouched. Each and every

voter who was drawn into those districts in 2011

remained in those districts in 2013. In fact, the only

official place to find a geographical definition of these

districts is in the intricacies of the 2011 legislation.

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

Tex. Gen. Laws 5091-5180.16 The 2013 redistricting

bill does not amend these districts in any fashion.

Contrary to Appellants’ contention, legislative inaction does not magically erase prior legislative intent.

If anything, a legislature’s ratification of previous

actions is nothing more than adoption of them, along

with their underlying intentions. CDs 27 and 35 did

not undergo a rebirth in 2013, only a continuation.

As a practical matter, judicial sanction of the State’s

purported “make-over” here would invite legislatures

to manufacture new legislative records for blatantly

discriminatory laws. Under the State’s logic, for

instance, where a challenge to legislatively enacted

districts culminates in a trial riddled with damning

evidence of discriminatory intent, a legislature could

simply erase the record by reconvening before

a judicial ruling is entered and reenacting the same

districts, this time citing a purported effort to

“cleanse” the districts of their discriminatory origins,

or even to “bring [the] existing litigation to an end,”

Br. 36. See C.J.S. App. 115a (under State’s theory,

“a Legislature could always insulate itself from a

Shaw-type challenge simply by re-enacting its plan

As explained above, supra n.13, Plan C235 made an

inconsequential change to CD27 by removing a few unpopulated

census blocks.

and claiming that it made no decisions about who to

include in the district at the time of re-enactment”).

There can be little doubt that, in such circumstances,

the Legislature would and should be unable to

supplant the original legislative record with a newly

manufactured record that results in purposeful reinstatement of the status quo.

As a legal matter, the fact that Plan C235 nominally

repealed Plan C185 rather than amended it does

not provide legislative cover for those districts that

remained the same. In Oneida County v. Oneida

Indian Nation of New York State, 470 U.S. 226 (1985),

this Court held that a repeal in name only has no

impact on the substantive provisions that remain the

same.

Although there is a formal repeal of the old by

the new statute, still there never has been a

moment of time since the passage of the [old]

act . . . when these similar provisions have

not been in force. Notwithstanding, therefore,

this formal repeal, it is . . . entirely correct to

say that the new act should be construed as a

continuation of the old[.]

Id. at 246 n.18 (quoting Bear Lake & River Waterworks

& Irrigation Co. v. Garland, 164 U.S. 1, 11-12 (1896));

see also Posadas v. Nat’l City Bank of N.Y., 296

U.S. 497, 505 (1936). Technical canons of statutory

construction only reinforce application of this principle

to the statutory provisions at issue here. “[W]hen an

existing statute is reenacted by a later statute in

substantially the same terms, . . . [t]he unchanged

provisions which are repeated in the new enactment

are construed to have been continuously in force.”

1A Norman J. Singer & J.D. Shambie Singer, Statutes

and Statutory Construction (“Sutherland on Statutory

Construction”) § 23:29 at 542-43 (7th ed. 2009). The

nominal repeal of Plan C185 in 2013 is thus of no

moment with respect to the legal analysis of those

districts that have remained in effect since 2011.

In this situation, the district court properly relied on

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

that the portions of the 2011 plan the court found had

been drawn with an impermissible motive “remain

unlawful” if “those lines remain unchanged” in Plan

C235 because the “discrimination continues to have its

intended effect.” C.J.S. App. 35a. Appellants’ attempt

to distinguish Hunter, see Br. 32; U.S. Br. 33, rests on

the same flawed premise that the Legislature actually

took action on CDs 27 and 35 in 2013—which it did

not. Hunter was unequivocal on the constitutional

rule that governs analysis of CDs 27 and 35 here: If

the “original enactment was motivated by” invidious

discriminatory intent “and the section continues to

this day to have that effect,” it violates equal protection under the test laid down in Village of Arlington

Heights v. Metropolitan Housing Development Corp.,

429 U.S. 252 (1977). Hunter, 471 U.S. at 233.

This case is indistinguishable. At the beginning of

the decade, Texas enacted a redistricting plan riddled

with discriminatory intent. While judicial intervention

mitigated some of the discriminatory effect flowing

from that improper intent, acquiescing to that limited

and preliminary judicial intervention by enacting Plan

C235’s changes to the DFW districts and CD23 does

not erase the intent with which CDs 27 and 35 were

enacted or do anything to ameliorate how that intent

continued to produce the same effect in those districts

in 2013 and beyond.17

The State’s insistence that any analysis of the districts as drawn in 2011 is moot thus strains credulity

in light of the fact that CDs 27 and 35 have been

“continuously in force” since 2011. Sutherland on

Statutory Construction § 23:29 at 542-43. A challenged

statute does not become moot just because it is voluntarily repealed (and reenacted, unchanged) in the middle of a lawsuit. City of Mesquite v. Aladdin’s Castle,

Inc., 455 U.S. 283, 288-89 n.10 (1982). Here, the Legislature not only left open the possibility that it might

reenact the 2011 redistricting statute, it effectively

did reenact—or more precisely, “ratify”—that statute

with respect to the only districts at issue in this

appeal. See Ne. Fla. Chapter of Associated Gen.

Contractors of Am. v. City of Jacksonville, 508 U.S.

656, 662 (1993) (“There is no mere risk that

Jacksonville will repeat its allegedly wrongful conduct;

it has already done so.”); id. at 662 n.3 (controversy is

not mooted where a new statute is “sufficiently similar

to the repealed [statute] that it is permissible to say

that the challenged conduct continues”).

Indeed, the State’s contention that the reenactment of the

identical configurations of CDs 27 and 35 in 2013 saved the

districts from invalidity under the Constitution and Voting

Rights Act is refuted by this Court’s interpretation of the Voting

Rights Act itself. In Reno v. Bossier Parish School Board, 520 U.S.

471 (1997), this Court was faced with an argument that the 1982

renewal of §5 changed a prior interpretation of the Act’s reach.

The Court rejected the argument on the ground that not

amending the statute does not constitute a change in the way the

statute should be interpreted. “Quite obviously, reenacting precisely the same language would be a strange way to make a

change.” Id. at 484 (quoting Pierce v. Underwood, 487 U.S. 552,

567 (1988)).

B. Nor can the State seek refuge in the district

court’s purported “blessing” of CDs 27 and 35 in its

2012 interim plan order. The State’s defense is unprecedented, boiling down to this putative rule: a legislature that successfully masks its discriminatory

motives during preliminary injunction proceedings

can permanently erase a discriminatory legislative

record by simply repealing and reenacting its law—

shifting the responsibility for its creation from the

legislature to the court.

Ample authority shows the opposite to be true. The

Court only recently explained the characteristics of

preliminary rulings in terms contradicting Texas’s

argument:

Crafting a preliminary injunction is an exercise of discretion and judgment, often dependent as much on the equities of a given case as

the substance of the legal issues it presents.

The purpose of such interim equitable relief

is not to conclusively determine the rights of

the parties, but to balance the equities as the

litigation moves forward.

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

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

This echoes decades of precedent establishing that a

preliminary injunction ruling has limited significance

for the ultimate disposition of a claim.

The purpose of a preliminary injunction is

merely to preserve the relative positions of

the parties until a trial on the merits can be

held. Given this limited purpose, and given

the haste that is often necessary if those

positions are to be preserved, a preliminary

injunction is customarily granted on the basis

of procedures that are less formal and

evidence that is less complete than in a trial

on the merits. A party thus is not required

to prove his case in full at a preliminary

injunction hearing, and the findings of fact

and conclusions of law made by a court granting a preliminary injunction are not binding

at trial on the merits.

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

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

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

conclusions reached at the preliminary injunction

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

claiming safe harbor in the district court’s preliminary

ruling “improperly equates ‘likelihood of success’ with

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

significant procedural differences between preliminary and permanent injunctions.” Camenisch, 451

U.S. at 394.

The State can hardly feign surprise that preliminary court rulings cannot be used to justify the

reenactment of identical districts. Not only did the

Legislature’s own lawyer caution against this shellgame strategy for hiding the State’s unconstitutional

conduct in 2013, but also the district court expressly

told Texas that its interim ruling was “not a final

ruling on the merits of any claims asserted by the

Plaintiffs in this case.” C.J.S. App. 367a. The State

had no basis to believe the §2 and constitutional issues

had been fully addressed or finally resolved where

the district court had cited a variety of “difficult and

unsettled legal issues as well as numerous factual

disputes” that were made all the more “difficult to

determine” in light of the “necessarily expedited and

curtailed” time frame for analysis. Id. 367a-368a.18

The district court’s repeated caveats, moreover, that

the interim plan was acceptable only to the extent it

was interim provided the Legislature no excuse for

avoiding a considered analysis of its own and cementing CDs 27 and 35 for the remainder of the decade.19

In short, the State’s boast that it simply “took the

court at its word,” Br. 2, is an empty one. The district

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

ruling contained only “preliminary determinations”

for one election cycle that “may be revised upon full

analysis.” C.J.S. App. 367a-68a. The State paid no

heed.

This Court should not sanction the State’s gaming

of the judicial process. The Legislature’s inaction in

2013 with respect to CDs 27 and 35 left those district

lines, and the circumstances of their origin, in full

force and effect. Accordingly, the district court properly grounded its analysis of the districts in the 2011

redistricting process.20

Indeed, the only federal court that had carefully considered

the legality of the original plan found rampant discriminatory

intent planwide. Texas v. United States, 887 F. Supp. 2d at 159,

161 & n.32.

See, e.g., C.J.S. App. 417a (“For purposes of an interim plan,

the Court concludes that C235 adequately addresses the claims

relating to the Central Texas districts.”) (emphasis added); id.

423a (deeming Plan C235 “an appropriate interim plan”); id. 368a

(“accept[ing] the compromise plan” because it “would significantly benefit the voters, candidates, election administrators,

counties, and political parties” for the 2012 elections).

Even were the Court to determine that the proper focus of

the questions of motive, intent, and purpose is the action of the

2013 Legislature instead of the 2011 Legislature, the district

court unanimously found that the 2013 Legislature displayed the

III. CD35 HAS BEEN A RACIAL GERRYMANDER EVER SINCE IT WAS DRAWN

IN 2011

The district court struck down CD35 as a racial

gerrymander in violation of the Equal Protection

Clause of the Fourteenth Amendment. In accordance

with this Court’s precedent, it found that race predominated over traditional districting principles in

“the drawing of district lines and selection of district

population” in CD35, C.J.S. App. 166a, which maintained the “exact same configuration” in Plans C185

and C235, id. 113a. The court further concluded

that the Legislature’s race-based redistricting of CD35

was not tailored to a compelling state interest;

mapdrawers set out “not to substantially address the

§ 2 requirement, but to use race as a tool for partisan

goals.” Id. 110a. The district court’s assessment of

CD35 in accordance with the “two-step” racial gerrymandering inquiry “warrants significant deference on

appeal to this Court.” Cooper, 137 S. Ct. at 1464.21

invidious intent and dominant motive necessary to invalidate

CDs 27 and 35. Its findings are not clearly erroneous and should

not be overturned by the Court. The Appellees on this brief adopt

by reference the arguments made on this point in Part II.B of the

Appellees’ brief on state legislative districts, Abbott v. Perez, Case

No. 17-626.

The district court’s racial gerrymandering finding did not

hinge on the State’s discriminatory intent. The district court

correctly noted that “[d]iscriminatory purpose is not an element

of a Shaw-type claim.” C.J.S. App. 37a n.36 (referring to Shaw v.

Reno, 509 U.S. 630 (1993)); see also id. 164a n.31 (“The harm

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

classification,’ not from vote dilution or intentional discrimination.”) (quoting Alabama, 135 S. Ct. at 1265); Covington v. North

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

this conclusion [that race predominated], we make no finding

Texas does not even attempt an argument that race

did not predominate in the actual line drawing of

CD35 or that the district court’s extensive factual

findings on this score are clear error. For good reason:

the evidence of racial predominance in the selection of

population within and without CD35 is overwhelming.

The district court found that nearly every traditional districting principle in CD35 was subordinated

to race. In Travis County, the lines were drawn in

complete disregard of city boundaries, state House

district boundaries, and “any other recognizable

communities of interest other than race.” C.J.S. App.

168a; Supp. App. 320. Race subordinated party vote—

by a factor of two—in the shuffling of voting tabulation

districts in the five new congressional districts tattooed onto Travis County. Supp. App. 337a. Precincts

were split to lasso the heavily-Latino dorms of a local

Catholic university into CD35, apart from the rest of

the school, and to send an “arrowhead” extension into

northern parts of Austin to bring Latino apartment

renters into a district running along the interstate

then looping into the south side of San Antonio eighty

miles away. C.J.S. App. 167a; see Bush v. Vera, 517

that the General Assembly acted in bad faith or with discriminatory intent in drawing the challenged districts[.]”), aff’d,

137 S. Ct. 2211 (2017). That analysis comports with this Court’s

articulation of the racial predominance standard as one which

examines the use of race in the placement of voters in various

districts. Alabama, 135 S. Ct. at 1271 (“[T]he ‘predominance’

question concerns which voters the legislature decides to choose,

and specifically whether the legislature predominantly uses race

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

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

placement of voters without a strong basis in evidence for doing

so, rather than any intent to discriminate through vote dilution,

that defines a Shaw claim.

U.S. 952, 970-71 (1996) (“split[] voter tabulation

districts” provide “objective evidence” of racial predominance since “the districting software used by the

State provided only racial data at the block-by-block

level”).

Nor were these deviations from traditional districting criteria limited to the north half of CD35. See

C.J.S. App. 170a n.36 (district court’s “finding that

race predominated in the drawing of [CD35] applies to

the district as a whole”). Race was similarly the basis

for selecting voters in Bexar County, where, after

snaking south along the interstate, CD35 first

narrows in low-density Latino areas then widens to

embrace the large Latino community in South San

Antonio. Id. 169a. Along the way, county and small

city boundaries gave way to race. Supp. App. 328a29a; C.J.S. App. 170a. The end result of this racebased carving of voters from north central Austin to

the south side of San Antonio is a district that remains

the least compact congressional district in the state.

Supp. App. 339a; see also C.J.S. App. 162a-63a.

Where, as here, race predominates, the burden

shifts to the State to demonstrate that the district’s

configuration was narrowly tailored to a compelling

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

on all available evidence, the district court rightly

concluded that Texas had not satisfied its strict

scrutiny burden with respect to CD35. While Texas

leaned on §2 of the Voting Rights Act to justify its racebased redistricting of CD35, the district court found

not only that CD35 was not “actually . . . necessary” to

avoid a §2 violation, Alabama, 135 S. Ct. at 1274, but

also that the Legislature had “no reasonable basis” for

believing it was, Supp. App. 340a.

The district court found—and Texas does not

dispute—that “the third Gingles precondition is not

present in a significant portion of the district,” namely

Travis County. C.J.S. App. 175a. See Thornburg

v. Gingles, 478 U.S. 30, 51 (1986) (requiring as

precondition for §2 liability that “the white majority

votes sufficiently as a bloc to enable it . . . usually to

defeat the minority’s preferred candidate”). Unlike

most other areas of Texas, “Travis County does not

have Anglo bloc voting.” C.J.S. App. 110a. Rather,

Travis County Anglos lack cohesion and split their

vote, Supp. App. 308a, and therefore “do not vote as a

bloc against the minority-preferred candidates.” Id.

340a. African-American and Latino voters in Travis

County “have the ability to elect their preferred candidates precisely because Anglo voters vote at sufficiently high rates for minority-preferred candidates.”

Id. Without evidence that racial bloc voting compelled

the extension of CD35 into Travis County, Texas’s §2

justification falls flat.22

The district court further found that “mapdrawers

knew” that the third Gingles precondition was not

satisfied in Travis County. C.J.S. App. 110a (emphasis

added). To be sure, “[t]here is no indication that [the

mapdrawer] had any evidence, much less a strong

basis in evidence, to support the inclusion of Travis

County in the new §2 district when he decided to place

While the district court was “inclined to find that CD35 is

not compact for §2 purposes,” it deferred the issue since the third

Gingles precondition was found lacking. C.J.S. App. 175a. Indeed,

the mapdrawer himself believed that CD35 was “borderline” on

the compactness scale and “had his doubts that the district was

required by § 2,” C.J.S. App. 162a, and the State’s own experts

testified that CD35 is “definitely not a compact district” and “not

‘compelling from a Section 2 standpoint,’” id. 162a-63a & n.30.

a district there.” Id. 179a n.46. Nor was there any

evidence “that any member of the Legislature, including Chairmen Solomons and Seliger, had any basis in

evidence for believing that CD35 was required by § 2

other than its HCVAP-majority status.” Id.; see also id.

(mapdrawer “repeatedly testified that his sole criteria

for a § 2 district was whether it was above 50%

HCVAP”); id. 178a (“There is no indication that

mapdrawers or the Legislature drew CD35 in Travis

County because they felt that Hispanic voters there

had a § 2 right that needed a remedy.”). The State

cannot now seek refuge in §2 where its configuration

of CD35 was not even informed by, let alone grounded

in, an inquiry into §2 requirements. See Shaw v. Hunt

(“Shaw II”), 517 U.S. 899, 908 n.4 (1996) (“To be a

compelling interest, the State must show that the

alleged objective was the legislature’s ‘actual purpose’

for the discriminatory classification, and the legislature must have had a strong basis in evidence to

support that justification before it implements the

classification.”) (citation omitted). The State’s willful

failure to examine even minimally the critical issue of

racial bloc voting for purposes of assessing potential §2

liability falls far short of its strict scrutiny burden to

establish narrow tailoring. See Cooper, 137 S. Ct. at

1472 (refusing to “approve a racial gerrymander whose

necessity is supported by no evidence”).

In fact, the district court found as a fact that the

“actual purpose” of Texas’s race-based drawing of

CD35 was never based on a legislative belief that §2

required its configuration, but, rather, on the racebased carve-up of Travis County and dismantlement

of the existing crossover district there.

[T]hey drew CD35 as an HCVAP-majority

district that extended into Travis County for

the purpose of eliminating the existing district [CD25] in which minorities and Anglos

together elected a Democratic candidate (and

to unseat that candidate). In this way, they

were able to create the facade of complying

with § 2 while actually minimizing the

number of districts in which minorities could

elect their candidates of choice despite the

massive minority population growth that had

occurred throughout the state.

C.J.S. App. 178a; see also id. 110a. This finding is fully

supported by the record. See Cooper, 137 S.Ct. at 1465

(district court’s findings of fact “are subject to review

only for clear error”). The Legislature decided in advance

that any new minority opportunity district in Texas

had to yield a net gain of three Republican seats. Supp.

App. 439a. “Although [the mapdrawer] could have drawn

a new central Texas Latino opportunity district without including Travis County or disrupting CD25, he

chose this configuration to ensure a 3-1 map.” C.J.S.

App. 440a. Thus, the district court concluded, “[a]lthough

a new Latino opportunity district was required in

South and West Texas, . . . mapdrawers’ placement of

significant population from Travis County into CD35

was not to substantially address the §2 requirement,

but to use race as a tool for partisan goals.” Id. 110a.23

To be sure, the State has no compelling interest in achieving

racially invidious objectives by purposely destroying a crossover

district. Shortly before this decade’s redistricting cycle, this Court

admonished states against such constitutionally suspect conduct.

See Bartlett, 556 U.S. at 24 (a showing that a state “intentionally

drew district lines in order to destroy otherwise effective

crossover districts” would “raise serious questions” under the

Fourteenth Amendment). The district court discussed the constitutional problem with the deliberate destruction of the Travis

County-based crossover district but refrained from directly ruling

The State’s principal argument in defense of CD35’s

race-based configuration is that the district court’s

interim map did not alter it. Br. 45-46. But as set forth

above, supra Part II, Texas’s decision to maintain the

status quo in CD35 by doing nothing at all in 2013

cannot replace the actual decisions made when the

actual lines were drawn by the Legislature in 2011.

See also C.J.S. App. 115a. The district court’s 2012

preliminary inquiry, moreover, can hardly be the

justification for the State’s action where that inquiry

shifted the strict scrutiny burden to Appellees. The

court asked whether Appellees had “demonstrated a

substantial likelihood that CD35 would fail a strict

scrutiny analysis if strict scrutiny applies,” id. 415a,

not whether the State would meet its burden to satisfy

strict scrutiny. Texas’s glib contention that “[i]f the

district court had ‘good reasons’ to believe that CD35

needed to be drawn as a minority-opportunity district

to address potential VRA §2 claims, then surely the

Legislature did too,” Br. 48, improperly equates the

district court’s standard of review under Perry with

the State’s more exacting standard under strict

scrutiny.24

on the question because its finding that CD35 is a racial gerrymander would necessitate reconfiguring the area anyway. C.J.S.

App. 111a n.83, 172a n.38. Nonetheless, the intentional destruction of benchmark CD25 under the Bartlett constitutional test

offers an alternative basis for invalidating Plan C235’s racial

carve-up of Travis County.

Even if the 2013 Legislature’s motivations were relevant, the

district court specifically warned the State not to rely on its

“preliminary determinations.” C.J.S. App. 367a. The abundant

caveats accompanying the interim plan provided Texas no legal

or factual basis, let alone a “strong basis in evidence,” Alabama,

135 S. Ct. at 1274, to believe that §2 required CD35’s

configuration.

The State’s only substantive argument on strict

scrutiny is that §2 required the creation of seven

Latino opportunity districts in south/west Texas. But

while the Legislature “may have had a strong basis in

evidence for believing” this undisputed fact, it “had no

basis in evidence to believe that the Gingles preconditions were satisfied in Travis County such that

a race-based majority-Hispanic district should be

drawn there.” C.J.S. App. 176a. The mere fact that §2

required the creation of seven Latino opportunity

districts does not give the State license to “draw a

majority-minority district anywhere,” even where the

Gingles preconditions are not present. Shaw II, 517

U.S. at 916. The inclusion of Travis County “would not

address the professed interest of relieving the vote

dilution, much less be narrowly tailored to accomplish

the goal.” Id. at 917.

As detailed above, the mapdrawers knew full well

that seven majority-minority districts could be drawn

in the region—in satisfaction of §2—without the racebased carving of Travis County and the destruction of

benchmark CD25. C.J.S. App. 181a n.47. Like the

district court, this Court should reject Texas’s invitation to bless its drawing of any old race-based district

in any old configuration in purported service of §2. The

question before the Court is not whether the State had

good reasons to believe that §2 required seven Latino

opportunity districts in south/west Texas, “one of

which was CD35,” Br. 47, but rather whether the

legislature had good reasons to believe “that the racebased calculus it employed in [CD35] was necessary to

avoid violating” §2, Bethune-Hill v. Va. State Bd. of

Elections, 137 S. Ct. 788, 801 (2017); see also Cooper,

137 S. Ct. at 1469 (“race-based districting is narrowly

tailored” to Voting Rights Act compliance “if a State

had ‘good reasons’ for thinking that the Act demanded

such steps”).

In its recent strict scrutiny analysis in Cooper, this

Court rejected the State’s proposed unconstrained

approach to drawing majority-minority districts in

purported service of §2. There this Court affirmed the

lower court’s finding that the State of North Carolina

had no basis for revamping an existing crossover

district in ostensible service to §2 requirements where

evidence of the third Gingles precondition was lacking.

137 S. Ct. at 1470. Similarly here, the State had no

reason to think that §2 required it to draw CD35 all

the way into Travis County, where the Anglo population “did not ‘vote[] sufficiently as a bloc’ to thwart

[minority] voters’ preference,” id. (quoting Gingles,

478 U.S. at 51), and dismantle the existing crossover

district CD25. In short, “experience gave the State no

reason to think” that §2 required Travis County

Latinos to be drawn out of their preexisting crossover

district and into a new majority-minority district. Id.

Indeed, just as North Carolina pursued a singleminded focus on achieving 50 percent minority VAP

without reference to the third Gingles precondition,

see id. at 1472, Texas mapdrawers pursued a singleminded focus on achieving 50 percent HCVAP in CD35

without regard to the presence of Anglo bloc voting,

C.J.S. App. 179a n.45. The incidence of racial bloc

voting in some areas of south/west Texas does not

support the State’s avowed need to extend CD35 into

Travis County to avoid §2 liability. This Court has

consistently rejected—and should once again reject—

the misguided notion that because there is racial bloc

voting somewhere, the State can draw a §2 remedy

anywhere.

Texas cannot take advantage of either its procedural

maneuvers or §2 to justify its race-based configuration

of CD35. The voters of CD35 have cast ballots in this

unconstitutional district in every election this decade.

This Court should affirm the district court’s invalidation of CD35 as an unconstitutional racial gerrymander.

IV. CD27 HAS ALWAYS BEEN AND STILL IS

IN VIOLATION OF §2

The district court expressly found that “the

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

configuration of CD27. C.J.S. App. 112a (emphasis

added). The State provides no basis for overturning

either finding. While the State points to other possible

explanations for the Legislature’s decision to excise

Nueces County Latinos from the majority-minority

district they enjoyed for over 25 years, it cannot escape

the testimony from its own witnesses affirming the

primary intent to protect the Anglo incumbent by

drowning out the votes of Nueces County Latinos. The

State’s myopic focus on its creation of seven majorityminority districts in purported satisfaction of §2,

moreover, falls away in the face of the unlawful racial

gerrymander of CD35 and ignores this Court’s wellestablished rule that a state cannot skirt the §2 rights

of minority voters by substituting in a new opportunity

district where §2 does not require it.

A. CD27 Intentionally Dilutes the Vote of

Nueces County Latinos

The district court’s findings lifted the veil from the

State’s defense of what it did to the nearly quarter

million Latino voters in Nueces County. As detailed

above, while voting in the county is highly racially

polarized, Latinos there had had the opportunity for

more than a quarter century to elect their congressional candidates of choice. But the Legislature

deliberately and cynically eliminated that ability, and

intentionally diluted the votes of Nueces Latinos, by

stranding them in the new Anglo-dominated district

where they lost their voting rights opportunity. The

evidence showed that this was by legislative design “to

protect an incumbent who was not the candidate of

choice of those Latino voters.” C.J.S. 191a.

The court based its finding on a meticulous examination of the extensive trial evidence, including testimony from the mapdrawers themselves. See Supp.

App. 287a-300a; C.J.S. App. 191a-92a. The mapdrawers were well aware that Representative Farenthold

would likely not survive reelection in majority-Latino

benchmark CD27, so they reoriented the district to

pave the way to his victory and ensure defeat of the

Latino-preferred candidate. In the Legislature’s view,

the long-acknowledged voting rights of Nueces County

Latinos had to be sacrificed because they voted the

wrong way. See LULAC v. Perry, 548 U.S. 399, 440

(2006) (“In essence the State took away the Latinos’

opportunity because Latinos were about to exercise it.

This bears the mark of intentional discrimination[.]”).

The State does not even attempt to justify the

Legislature’s decision to carve out Nueces County

Latinos from their previous majority-minority district

in service of Farenthold’s reelection. To be sure, this

Court has already rejected the State of Texas’s argument that vote dilution is an acceptable means of

incumbency protection. See LULAC v. Perry, 548 U.S.

at 440-41. Over a decade ago, Texas argued that the

reason for excising Latino voters from CD23 was to

protect the incumbent “from a constituency that was

increasingly voting against him.” Id. at 440. This

Court clarified that incumbency protection may not be

pursued at all costs.

If the justification for incumbency protection

is to keep the constituency intact so the

officeholder is accountable for promises made

or broken, then the protection seems to accord

with concern for the voters. If, on the other

hand, incumbency protection means excluding some voters from the district simply

because they are likely to vote against the

officeholder, the change is to benefit the

officeholder, not the voters. By purposely

redrawing lines around those who opposed

[the incumbent], the state legislature took

the latter course. This policy, whatever its

validity in the realm of politics, cannot justify

the effect on Latino voters.

Id. at 441. Indeed, similar to LULAC v. Perry, the

legislative policy here “becomes even more suspect,”

id., when considered in light of the evidence that the

State “replaced” CD27 with CD35 in purported satisfaction of §2 knowing full well that the contorted

extension into Travis County had no §2 basis. See

supra Part III; C.J.S. App. 178a (“In this way, they

were able to create the facade of complying with §2

while actually minimizing the number of districts in

which minorities could elect their candidates of choice

despite the massive minority population growth that

had occurred throughout the state.”); LULAC v. Perry,

548 U.S. at 441 (“This use of race to create the facade

of a Latino district also weighs in favor of appellants’

claim.”).

Notwithstanding the testimony from the mapdrawers, the State contends that the real motivation for

including Nueces County in majority-Anglo CD27 was

“to keep Nueces County whole as the anchor of a

congressional district” while establishing a new district anchored in Cameron County. Br. 51, 53.25 In

particular, the State points to “hearings held before

the 2011 legislative session” as the source for the

reorientation of Nueces County and the concomitant

electoral isolation of its 206,000 Latino residents.

Br. 51. But the district court pored over the abundant

testimony from those hearings and found significant

inconsistencies with both the State’s proffered explanation and the resulting map. See Supp. App. 295a.

Indeed, “no one suggested” that Nueces County should

be grouped with the host of majority-Anglo counties

to its north, id., yet that is precisely the configuration

the mapdrawers chose—and precisely the means of

diluting the vote of Nueces County Latinos. C.J.S.

App. 189a-190a.

The State’s contention that it was driven by a desire

for Nueces County to anchor a district is further belied

by the actual configuration and performance of CD27.

While Nueces County voters controlled the outcome

of CD27 elections in the benchmark plan, see Supp.

The State’s citation to Personnel Administrator of

Massachusetts v. Feeney as the governing standard for discriminatory intent conveniently omits two important qualifiers. First,

the Feeney test asks whether the government decision was “at

least in part ‘because of’” its adverse effects on an identifiable

group. 442 U.S. 256, 279 (1979) (emphasis added). Feeney further

notes that when the adverse consequences of the law at issue

on an identifiable group—here, minority voters—are virtually

inevitable, “a strong inference that the adverse effects were

desired can reasonably be drawn.” Id. at 279 n.25. Where the

State equated minorities with Democrats, and then used the

division of minority communities as the tool to harm Democrats,

the inference is unavoidable that the adverse effects on minorities

also were intended.

App. 296a (“In benchmark CD27, Nueces County’s

registered voters made up just over 50% of the total

registered voters.”); Rod. Ex. 955 (63.3 percent of

votes cast in 2010 general election in benchmark CD27

were from Nueces County), Nueces County voters lost

control of the election once the district was reoriented

to include “twelve heavily Anglo Central Texas counties,” Supp. App. 294a, 296a (“In new CD27, Nueces

County voters are no longer the majority of registered

voters in the district.”); Rod. Ex. 956 (65.1 percent

of votes cast in 2012 general election in CD27 were

from outside Nueces County). Indeed, the mapdrawers

“did no analysis to see whether Nueces County could

control the election in the new CD27 and did not know

if it could.” Supp. App. 296a. The fact that mapdrawers

managed to fail in meeting what the State now

proffers as the main goal driving CD27 reveals the

pretextual nature of that claim.26

The State’s alternative explanation for the configuration of CD27 was thoroughly considered and

ultimately rejected by the district court. C.J.S. App.

193a. Even if the State’s argument found some support

in the record, the State provides this Court no basis for

finding “clear error.” See 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.”)

(quoting Anderson v. Bessemer City, 470 U.S. 564, 575

The State’s contention that there were other ways “a

nefarious mapdrawer” could have diluted the vote of Nueces

County Latinos hardly exonerates it for choosing its preferred

method of vote dilution. Br. 53. The dilution of minority voting

strength “may be caused by the dispersal of [Latinos] into districts in which they constitute an ineffective minority of voters,”

as was done in CD27, “or from the concentration of [Latinos] into

districts where they constitute an excessive majority.” Gingles,

478 U.S. at 46 n.11 (emphasis added).

(1985)); see also Anderson, 470 U.S. at 573-74 (“If the

district court’s account of the evidence is plausible in

light of the record viewed in its entirety, the court of

appeals may not reverse it even though convinced that

had it been sitting as the trier of fact, it would have

weighed the evidence differently. Where there are two

permissible views of the evidence, the factfinder’s

choice between them cannot be clearly erroneous.”).

This longstanding rule of deference is surely applicable here, where the district court’s ultimate conclusion of discriminatory intent came after it heard weeks

of testimony and made credibility determinations of

multiple decisionmakers central to the design of the

challenged districts. See Cooper, 137 S. Ct. at 1478 (“A

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

whom has told a coherent and facially plausible story

that is not contradicted by extrinsic evidence,’ can

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

470 U.S. at 575).

Ultimately, the mapdrawers themselves acknowledged that creating a separate Cameron County-based

district, protecting Representative Farenthold, and

respecting the §2 voting rights of Nueces County

Latinos was not a zero sum game. See Supp. App.

297a. Despite the multitude of options, and consistent

with their statewide approach of using race to achieve

maximum political gain for Anglo Republicans, mapdrawers chose the one configuration that unnecessarily

isolates Nueces County Latinos from an opportunity

district and drowns out their electoral power in Anglodominated CD27.

B. CD27 Violates § 2’s Effects Test

Regardless of the motivation behind CD27, the

discriminatory impact on Latino voters in Nueces

County who have been unlawfully deprived of the

equal opportunity to elect their candidates of choice

persists in CD27. The “approximately 200,000

Hispanic voters in Nueces County (a majority-HCVAP

county) [who] had a §2 right that could be remedied

but was not” have suffered from the practical effects of

vote dilution in every election held this decade. C.J.S.

App. 181a.

After examining each of the necessary elements for

a §2 violation, the district court found that CD27 “has

the effect of diluting Nueces County Hispanic voters’

electoral opportunity,” C.J.S. App. 190a-91a. Specifically, it found that (1) “a district could be drawn in

which Hispanics, including Nueces County Hispanics,

are sufficiently numerous and geographically compact

to constitute a majority HCVAP”; (2) “racially polarized voting exists such that an Anglo-majority would

usually defeat” the Latino-preferred candidate; and

(3) “[a] searching practical evaluation of ‘past and

present reality’ and a functional view of the political

processes indicates that the political processes are not

equally open to Hispanics.” Id. 190a.

The State does not dispute that the discriminatory

effects of CD27 “may be carried over . . . from one

version of a law to another.” Br. 31-32. It argues only

that Plan C235’s incorporation of seven Latino opportunity districts in south/west Texas satisfies the first

prong of the Gingles test and therefore forecloses a

§2 claim. Br. 49-50. To be sure, Appellants, Appellees,

and the district court all agree that §2 requires seven

Latino opportunity districts in the area. See C.J.S.

App. 112a. But that conclusion is the beginning, not

the end, of the §2 inquiry.

The State’s argument falters because it fails to

account for the invalid racial gerrymander of CD35.

The State itself acknowledges that to establish the

effects prong of a 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.’”

Br. 49 (quoting LULAC v. Perry, 548 U.S. at 430)

(emphasis added). Once the CD35 constitutional violation is unraveled, removing the Travis County Latinos

that were gerrymandered into the district, the “existing number” of Latino opportunity districts falls one

short of the undisputed §2 requirement, and a Latino

opportunity district still must be established somewhere in the South and West Texas envelope to

replace it. This means that Nueces County and its

large Latino population must be pulled back into the

envelope in order to satisfy the State’s §2 obligation.

See Supp. App. 300a (“Including the population of

Nueces County in the envelope makes it easier to draw

seven Latino opportunity districts under §2 without

including Travis County.”).

This is the very thing the Legislature chose not to do

when it designed CDs 27 and 35. It took Nueces

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

an Anglo-dominated district where their rights could

not be exercised. In exchange, mapdrawers carved up

Travis County racially, placing nearly 150,000 Travis

County Latinos in CD35, even though they did not

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

took §2 rights from those who have them to provide a

§2 remedy to those who do not. LULAC v. Perry holds

that such a trade is itself a §2 violation.

The Court has rejected the premise that a

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

providing greater opportunity to others. . . .

[T]hese conflicting concerns are resolved

by allowing the State to use one majorityminority district to compensate for the

absence of another only when the racial group

in each area had a §2 right and both could not

be accommodated.

548 U.S. at 429. “Simply put, the State’s creation of an

opportunity district for those without a §2 right offers

no excuse for its failure to provide an opportunity

district for those with a §2 right.” C.J.S. App. 181a

(quoting LULAC v. Perry, 548 U.S. at 430).

The State offers little in response to the obvious

parallels to LULAC v. Perry. According to the State,

because the trade in LULAC v. Perry was deemed

unlawful for the new district’s failure to comply with

the first Gingles prong, it has no bearing here, where

the district court found the new district (CD35) failed

to comply with the third Gingles prong. Br. 50. This is

a distinction without a difference. This Court’s holding

in LULAC v. Perry rests not on the presence or absence

of a specific precondition but on the presence or

absence of “a §2 right.” 548 U.S. at 430; see also Shaw

II, 517 U.S. at 917 (“The vote-dilution injuries suffered

by [individuals with a §2 right] are not remedied by

creating a safe majority-[minority] district somewhere

else in the State.”). Texas’s failure to grapple with the

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

its appeal of the §2 invalidation of CD27. “Under § 2,

the State must be held accountable for the effect of [its]

choices in denying equal opportunity to Latino voters.”

LULAC v. Perry, 548 U.S. at 441-42 (emphasis added).

CONCLUSION

For the foregoing reasons, as well as the reasons

provided by the district court, this Court should either

dismiss this case for lack of jurisdiction or, alternatively, affirm the Order on Plan C235 entered by the

district court on August 15, 2017.

Respectfully submitted,

JOSÉ GARZA

MARTIN GOLANDO

GARZA GOLANDO

MORAN, PLLC

115 E Travis St., Ste. 1235

San Antonio, TX 78205

Counsel for Appellee

Mexican American

Legislative Caucus, Texas

House of Representatives

DAVID RICHARDS

RICHARDS, RODRIGUEZ &

SKEITH, LLP

816 Congress Ave., Ste. 1200

Austin, TX 78701

Counsel for Appellees

Shannon Perez, et al.

ALLISON J. RIGGS

SOUTHERN COALITION FOR

SOCIAL JUSTICE

1415 West Highway 54

Ste. 101

Durham, NC 27707

RENEA HICKS

Counsel of Record

LAW OFFICE OF

MAX RENEA HICKS

P.O. Box 303187

Austin, TX 78703

(512) 480-8231

rhicks@renea-hicks.com

MARC E. ELIAS

BRUCE V. SPIVA

ARIA C. BRANCH

PERKINS COIE LLP

700 13th St. NW, Ste. 600

Washington, DC 20005

ABHA KHANNA

PERKINS COIE LLP

1201 Third Ave., Ste. 4900

Seattle, WA 98101

Counsel for Appellees

Eddie Rodriguez, et al.

J. GERALD HEBERT

J. GERALD HEBERT, P.C.

191 Somervelle St., No 405

Alexandria, VA 22304

ROBERT NOTZON

LAW OFFICE OF

ROBERT S. NOTZON

1507 Nueces St.

Austin, TX 78701

VICTOR L. GOODE

NAACP

4805 Mt. Hope Dr.

Baltimore, MD 21215

Counsel for Appellees the

Texas State Conference of

NAACP Branches, et al.

LUIS R. VERA, JR.

LAW OFFICES OF LUIS

ROBERTO VERA, JR.

1325 Riverview Towers

111 Soledad

San Antonio, TX 78205

Counsel for Appellees

LULAC, et al.

GARY L. BLEDSOE

POTTER BLEDSOE, LLP

316 West 12th St.

Ste. 307

Austin, TX 78701

Counsel for Appellees

Congressmembers Eddie

Bernice Johnson, Sheila

Jackson Lee and Al Green

and NAACP Intervenor

Howard Jefferson

March 28, 2018

MARK P. GABER

439 Elm St. NW

Washington, DC 20001

JESSICA RING AMUNSON

JENNER & BLOCK LLP

1099 New York Ave. NW

Ste. 900

Washington, DC 20001

GERALD H. GOLDSTEIN

GOLDSTEIN, GOLDSTEIN,

& HILLEY

310 S. St. Mary’s St.

San Antonio, TX 78205

DONALD H. FLANARY, III

FLANARY LAW FIRM

1005 South Alamo

San Antonio, TX 78210

JESSE GAINES

P.O. Box 50093

Fort Worth, TX 76105

Counsel for Appellees

Margarita Quesada,

et al.

ROLANDO L. RIOS

LAW OFFICES OF

ROLANDO L. RIOS

115 E. Travis St., Ste. 1645

San Antonio, TX 78205

Counsel for Appellee

Congressman Henry

Cuellar

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