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

Nos. 17-586, 17-626

In the Supreme Court of the United States

GREG ABBOTT, GOVERNOR OF TEXAS, et al.,

Appellants,

v.

SHANNON PEREZ, et al.,

Appellees.

On Appeal to the United States District Court for

the Western District of Texas

BRIEF FOR COMMON CAUSE AND

THE VOTING RIGHTS INSTITUTE

AS AMICI CURIAE SUPPORTING APPELLEES

EUGENE R. FIDELL

Yale Law School

Supreme Court Clinic

127 Wall Street

New Haven, CT 06511

(203) 432-4992

CHARLES A. ROTHFELD

Counsel of Record

MICHAEL B. KIMBERLY

ANDREW J. PINCUS

PAUL W. HUGHES

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

crothfeld

@mayerbrown.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Table of Authorities.................................................... ii

Interest of the Amici Curiae .......................................1

Argument.....................................................................4

A. The Texas Legislature initially drew the

districts at issue here with a

discriminatory purpose.....................................4

B. Texas’s attempt to equate preliminary

findings with a final decision on the

merits is unavailing..........................................9

1. A preliminary injunction is not a

decision on the merits. ..............................10

2. The district court emphasized the

limited nature of its holding. ....................13

3. Texas cannot evade review by relying

on the court’s interim findings..................17

4. There is a procedure for combining

preliminary hearings with a decision

on the merits, but it was not used

here. ...........................................................20

C. Interim court approval of districts created

with a discriminatory purpose does not

launder out the discrimination when

those same districts are re-enacted. ..............22

1. Texas’s real motive was to re-enact the

discriminatory 2011 maps. .......................23

2. Texas had an affirmative duty to

remove the taint of racial

discrimination. ..........................................28

Conclusion .................................................................30

ii

TABLE OF AUTHORITIES

Cases

Benavidez v. Irving Indep. Sch. Dist.,

No. 3:13-CV-0087-D (N.D. Tex. Oct.

20, 2014) ...............................................................14

Berrigan v. Sigler,

499 F.2d 514 (D.C. Cir. 1974) ..............................19

Biediger v. Quinnipiac Univ.,

691 F.3d 85 (2d Cir. 2012) ...................................18

Bush v. Vera,

517 U.S. 952 (1996)..............................................26

Bynes v. Toll,

512 F.2d 252 (2d Cir. 1975) .................................15

Chapman v. Meier,

420 U.S. 1 (1975)..................................................23

City of Anaheim v. Duncan,

658 F.2d 1326 (9th Cir.1981)...............................19

Clark v. K-Mart Corp.,

979 F.2d 965 (3d Cir. 1992) .................................12

Communications Maint., Inc. v.

Motorola, Inc.,

761 F.2d 1202 (7th Cir. 1985)..............................19

Common Cause/Georgia v. Billups,

554 F.3d 1340 (11th Cir. 2009)............................16

Connor v. Finch,

431 U.S. 407 (1977)..............................................23

Fabela v. City of Farmers Branch,

No. 3:10-CV-1425-D (N.D. Tex. Jan.

1, 2013) .................................................................13

iii

Cases—continued

Fairley v. City of Hattiesburg,

122 F. Supp. 3d 553 (S.D. Miss. 2015) ................13

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000)..............................................25

Golden State Transit Corp. v. City of

Los Angeles,

754 F.2d 830 (9th Cir.1985).................................19

Green v. County Sch. Bd.,

391 U.S. 430 (1968)..............................................28

Hall v. Louisiana,

108 F. Supp. 3d 119 (M.D. La. 2015)...................13

Hamilton Watch Co. v. Benrus Watch Co.,

206 F.2d 738 (2d Cir. 1953) .................................12

Hunt v. Cromartie,

526 U.S. 541 (1999)..............................................24

Industrial Bank of Wash. v. Tobriner,

405 F.2d 1321 (D.C. Cir. 1968) ............................12

Irish Lesbian & Gay Org. v. Giuliani,

143 F.3d 638 (2d Cir.1998) ..................................18

Keyes v. School Dist. No. 1, Denver, Colo.,

413 U.S. 189 (1973)..............................................29

Lac Du Flambeau Band of Lake

Superior Chippewa Indians v. Stop

Treaty Abuse-Wis., Inc.,

991 F.2d 1249 (7th Cir. 1993)..............................19

Lockhart v. United States,

136 S. Ct. 958 (2016)......................................24, 25

iv

Cases—continued

Lorillard v. Pons,

434 U.S. 575 (1978)..............................................25

Los Angeles Mem’l Coliseum Comm’n v.

National Football League,

634 F.2d 1197 (9th Cir. 1980)..............................16

Los Angeles Mem’l Coliseum Comm’n v.

National Football League,

726 F.2d 1381 (9th Cir. 1984)..............................16

LULAC v. Perry,

548 U.S. 399 (2006)..............................................26

McCreary Cty. v. ACLU,

545 U.S. 844 (2005)..............................................24

McDaniel v. Sanchez,

452 U.S. 130 (1981)..............................................23

Morris v. Hoffa,

361 F.3d 177 (3d Cir. 2004) .................................18

Nalpac, Ltd. v. Corning Glass Works,

784 F.2d 752 (6th Cir. 1986)................................15

Patino v. City of Pasenda,

230 F. Supp. 3d 667 (S.D. Tex. 2017) ..................14

Perry v. Perez,

132 S. Ct. 934 (2012)............................................12

Public Interest Research Grp., Inc. v.

Powell Duffryn Terminals Inc.,

913 F.2d 64 (3d Cir. 1990) ...................................15

Public Serv. Comm’n of Wis. v.

Wisconsin Tel. Co.,

289 U.S. 67 (1933)................................................11

v

Cases—continued

Pughsley v. 3750 Lake Shore Drive

Coop. Bldg.,

463 F.2d 1055 (7th Cir. 1972)..............................21

Rodriguez v. Harris Cty.,

964 F. Supp. 2d 686 (S.D. Tex 2013) ...................13

Sanchez v. Esso Standard Oil Co.,

572 F.3d 1 (1st Cir. 2009) ....................................21

Sanofi-Aventis Deutschland GmbH v.

Glenmark Pharms. Inc.,

821 F. Supp. 2d 681 (D.N.J. 2011) ......................18

Smith v. Wade,

461 U.S. 30 (1983)................................................25

Sole v. Wyner,

551 U.S. 74 (2007)................................................16

Technical Publ’g Co. v. LebharFriedman, Inc.,

729 F.2d 1136 (7th Cir. 1984)..............................13

Terrebonne Par. Branch NAACP v. Jindal,

274 F. Supp. 3d 395 (M.D. La. 2017)...................13

Texas v. United States,

887 F. Supp.2d 133 (D.D.C. 2012) .......................25

Thornburgh v. American Coll. of

Obstetricians & Gynecologists,

476 U.S. 747 (1986)..............................................11

Trump v. International Refugee

Assistance Project,

137 S. Ct. 2080 (2017)....................................11, 17

vi

Cases—continued

United Motorcoach Ass’n, Inc. v.

City of Austin,

851 F.3d 489 (5th Cir. 2017)................................15

United States v. Fordice,

505 U.S. 717 (1992)........................................26, 29

United States v. Virginia,

518 U.S. 515 (1996)..............................................28

University of Tex. v. Camenisch,

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

Upham v. Seamon,

456 U.S. 37 (1982)................................................26

Village of Arlington Heights v.

Metropolitan Hous. Dev. Corp.,

429 U.S. 252 (1977)........................................22, 27

Walters v. National Ass’n of Radiation

Survivors,

473 U.S. 305 (1985)..............................................11

Washington v. Davis,

426 U.S. 229 (1976)..............................................29

Weinberger v. Wiesenfeld,

420 U.S. 636 (1975)..............................................23

White v. Regester,

412 U.S. 755 (1973)..............................................26

White v. Weiser,

412 U.S. 783 (1973)..............................................26

William G. Wilcox, D.O., P.C. Employees’ Defined Benefit Pension Tr. v.

United States,

888 F.2d 1111, 1113 (6th Cir. 1989)....................19

vii

Cases—continued

Winter v. NRDC,

555 U.S. 7 (2008)..................................................16

York v. City of St. Gabriel,

89 F. Supp. 3d 843 (M.D. La. 2015).....................14

Zen Music Festivals, L.L.C. v. Stewart,

72 F. App’x 168 (5th Cir. 2003) ...........................12

Other Authorities

2B Sutherland Statutes and Statutory

Construction § 49:9 (7th ed. 2017).......................25

11A C. Wright, A. Miller, & E. Kane,

Federal Practice and Procedure §

2950 (2009) ...........................................................21

18 C. Wright, A. Miller & E. Cooper,

Federal Practice & Procedure § 4478

(1981)....................................................................20

42 Am. Jur. 2d Injunctions ..........................12, 16, 17

Department of Justice, Voting

Determination Letters for Texas,

perma.cc/3CK4-KDKB .........................................26

Douglas A. Laycock, The Death of the

Irreparable Injury Rule, 103 Harv. L.

Rev. 687 (1990).....................................................14

Fed. R. Civ. P. 65(a)(2) ..............................................20

Linda J. Silberman, Injunctions by the

Numbers: Less Than the Sum of Its

Parts, 63 Chi.-Kent L. Rev. 279

(1987)..............................................................14, 15

viii

Nina Perales, Luis Figueroa & Criselda

G. Rivas, Voting Rights in Texas:

1982-2006, 17 S. Cal. Rev. L. & Soc.

Just. 713 (2008)....................................................26

Tex. Const. art. III § 26 ...............................................5

1

INTEREST OF THE AMICI CURIAE1

Founded in 1970, amicus Common Cause is a

nonprofit, nonpartisan organization dedicated to protecting and strengthening democracy and the democratic process. Its membership now stands at 1.1 million people. Common Cause has, among other things,

led the movement to lower the voting age to 18; and

spearheaded the passage of freedom-of-information

laws, government ethics laws, and laws to limit the

corrupting influence of money in politics. Gerrymandering is an issue of longstanding interest to Common Cause at the national level and in its network of

35 state organizations.

Amicus Voting Rights Institute (VRI) is a first-ofits-kind legal institute established to help enforce

and protect the rights of American voters. A joint

project of Georgetown University Law Center, the

Campaign Legal Center, and the American Constitution Society, VRI assists attorneys, expert witnesses,

law students, and the public combat discriminatory

voting practices across the country. It offers opportunities for students, recent graduates, and fellows

to engage in litigation and policy work in the field of

voting rights and to educate attorneys about the

skills and best practices of voting rights advocates. It

also recruits and trains expert witnesses to assist in

litigation development and presentation; promotes

increased local and national focus on voting rights

1 Pursuant to this Court’s Rule 37.6, amici state that no counsel

for a party authored this brief in whole or in part and that no

person other than amici or their counsel made a monetary contribution to its preparation or submission. The parties have

submitted blanket consents to the filing of amicus briefs in this

case.

2

through events, publications and the development of

web-based tools; and provides opportunities and platforms for research on voting rights.

This case involves the legality of voting districts

that the Texas Legislature originally created in 2011.

After the district court invalidated those districts as

discriminatory, the court in 2012 permitted use of

some of the districts on an interim basis, expressly

noting that its interim review had been limited and

was subject to revision. In 2013, the Texas Legislature re-enacted the same districts—those originally

held to be discriminatory—without change. Texas

now argues, in part, that adoption of the district

court’s interim plan in 2012 effectively insulates the

2013 plan from further review. Because this contention threatens to subject Texas residents (and, if

Texas’s theory prevails, residents of other States) to

discriminatory voting regimes, and because amici

have considerable experience addressing issues that

relate to redistricting, amici submit this brief to assist the Court in the resolution of the case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Appellees show in their briefs that the challenged Texas districts were created with a discriminatory purpose. That conclusion plainly is correct on

the record here: The Texas Legislature knew what it

was doing and intended the result when it drew districts that minimized minority voting strength.

In this brief, we focus on two particular, related

arguments that Texas and the United States advance in defense of the challenged 2013 redistricting

plans in an effort to avoid a conventional—and, from

3

their perspective, fatal—inquiry into legislative motive.2 First, Texas maintains that the challenged

plans here were “court-drawn” or “court imposed”

(see, e.g., Texas Br. i; see also U.S. Br. 24) and that,

necessarily, the Legislature’s adoption of a plan that

had been validated by a federal court could not have

been improper. And second, Texas insists that the

improper purpose that initially motivated adoption of

Plan H283 in 2011 was somehow laundered out of

Plan H358 when the Legislature created identical

districts after the district court’s interim approval of

those districts in 2012.

These arguments are wrong. The districts challenged here were discriminatory when the Texas

Legislature created them in 2011. They had not magically lost their discriminatory purpose when the

Legislature re-enacted the very same districts two

years later.

A. Texas is incorrect when it maintains that the

district court validated the challenged districts, and

insulated them from review, when it permitted their

use in the 2012 interim plan. It is fundamental that

courts use different standards when issuing preliminary or interim relief than they do when making a

final determination on the merits. The need for expeditious review means that a preliminary ruling is

issued on a limited record and with less than full

consideration; such a ruling is characterized by what

courts have called “its for-the-time-beingness.” The

The arguments in this brief apply both to the Texas House

districts incorporated in Plan H358 and to the congressional

districts incorporated in Plan C235 that remained unchanged

from Texas’s 2011 state house and congressional plans. For

simplicity’s sake, the brief principally discusses Plan H358.

2

4

district court here emphasized that is just how it regarded its interim ruling, which it repeatedly said

was not definitive and was subject to revision. That

ruling does not establish the ultimate validity of the

challenged districts, and Texas could not reasonably

have relied on it for that purpose.

B. The interim ruling also does not launder the

Texas Legislature’s discriminatory purpose out of the

case. Texas now maintains that it adopted districts

included in the interim plan simply to bring an expeditious end to the redistricting litigation. But Texas’s

stated motive is not the end of the matter: It remains

the Court’s duty to determine the Legislature’s actual intent when it chose to re-enact districts that had

been held to be the product of a discriminatory purpose. And here, all of the usual indicia of legislative

intent—including the history, context, and prior judicial constructions of the legislative language—

support the district court’s finding that the Texas

Legislature adopted the 2013 plan with a discriminatory purpose.

ARGUMENT

A. The Texas Legislature initially drew the

districts at issue here with a discriminatory

purpose.

Appellees address the history of the Texas plan

at issue in this case in detail (Appellees’ Br. 2-253),

and there is no need to repeat that presentation

here. But for purposes of the arguments addressed in

this brief, one element of the record warrants special

emphasis: the district court’s findings regarding the

3 References here to “Appellees’ Brief” are to appellees’ brief re-

lating to the State House districts.

5

discriminatory intent that underlay the initial drawing in 2011 of the Texas House districts at issue

here. Because it is the position of Texas and the

United States that a plan using those same boundaries was drawn with a benign intent just two years

later, it is helpful to bear in mind the specific findings that led the district court to hold those districts

to have been constructed with the specific purpose of

disadvantaging minority voters.

1. In Nueces County, the district court found that

the cartographers acted “in bad faith” when they

eliminated HD33 as a Hispanic opportunity district.

H.J.S. App. 133a. The court found that it was “undisputed that Nueces County had two benchmark

Latino opportunity districts” before the 2010 redistricting cycle. Ibid. Legislators had “three options”

for how to district Nueces County: “(1) draw one ‘performing’ Hispanic district and one not; (2) draw two

equally Hispanic districts, which may not perform

reliably; or (3) see if both Latino opportunity districts

could be preserved by splitting county lines.” Id. at

127a.4 The mapmakers pursued the first option, despite never “seriously look[ing] at whether § 2 [of the

Voting Rights Act (“VRA”)] might require two opportunity districts in Nueces County.” Id. at 127a n.22.

Instead, they sought to “offset” the loss of HD33 as

an opportunity district by adding more Latinos to

4 The County Line Rule is a Texas constitutional requirement

that legislative districts “preserve whole counties when population mandates permit.” Tex. Const. art. III § 26. To the extent

the Texas Constitution conflicts with the Voting Rights Act,

however, federal law controls.

6

HD90 and HD148—districts that were already electing minority candidates of choice. Ibid.5

The court found that the “redistricters knew”

that these two districts “were already ability districts, and thus that increasing their SSVR did not

create any ‘new’ ability district to offset the loss of

HD33.” H.J.S. App. 135a. Hence, the court found

that the true motive was “to intentionally dilute Latino voting strength by * * * allowing redistricting

leadership to claim that they were complying with

the VRA despite eliminating HD33 and creating no

new opportunity or ability districts.” Id. at 137a.

The district court also found “evidence that the

mapdrawers (including specifically Rep. Hunter) racially gerrymandered the districts that remained in

Nueces County to further undermine Latino voting

strength.” H.J.S. App. 136a. The court noted that

“[t]here are ten precinct splits along the HD32/HD34

border” from which the court inferred that

“mapdrawers were likely using race to assign population since accurate political data is not available

below the precinct level.” Ibid. The goal of these

splits, according to the district court, was to “intentionally pack[] Hispanic voters into HD32 to minimize their number and influence in HD34” to protect

the Republican incumbent. Ibid. The court also found

evidence that the mapdrawers “targeted low turnout

5 The district court also found that the mapmakers intentional-

ly relied on Spanish Surname Voter Registration (“SSVR”) as a

measure of the relevant Latino population in Nueces County,

even though they knew that Hispanic Citizen Voting Age Population (“HCVAP”) was the more appropriate measure, because

“SSVR was lower (and lower than 50%), and it allowed them to

argue that mathematically, two SSVR-majority districts could

not be drawn.” H.J.S. App 134a.

7

minority areas” for inclusion in HD34 to protect the

Republican incumbent. Ibid. Finally, the court found

evidence that the mapmakers intentionally overpopulated HD32 (and underpopulated HD34), without a

legitimate justification for doing so. Ibid. All of these

findings contributed to the conclusion that the Texas

Legislature had engaged in intentional vote dilution.

2. The district court found that in Dallas County,

the mapdrawers intended to “dilute minority voting

strength to protect a Republican incumbent in

HD105 by intentionally making the district more

Anglo.” H.J.S. App. 170a. The court found that the

“Anglo population decreased by 198,000 in Dallas

County” even while the population of Dallas County

as a whole grew by 350,000. Id. at 261a. As such, the

mapmakers knew that two of the three districts in

Dallas County would have to be minority districts.

See id. at 171a. As one advisor to the mapmakers

explained, however, it might “get ‘worse’ because

they might have to draw a third Latino district,

which would mean the loss of a third Republican

seat.” Ibid. But instead of “exploring whether any

additional minority districts could be drawn or maintained to recognize the population growth,” the

mapmakers decided to pack as many Latino voters

as possible into the two minority districts and therefore “eliminated districts that were on track to perform for minority voters.” Ibid.

In fact, one of the redistricters “admitted to splitting precincts to put the Hispanic population into

HD104 and HD103 and the Anglo population in

HD105.” H.J.S. App. 171a. Although this legislator

claimed that he took this step to comply with the

VRA, the district court found “that this was yet another example of mapdrawers using superficial com-

8

pliance with the VRA to dilute minority voting

strength rather than enhancing it.” Ibid. By doing

so, the Legislature made it less likely that Latinos

would elect their candidate of choice in HD105. Id. at

261a & n.35. Hence, the district court found that the

Legislature’s “true motive was to dilute Latino voting

strength in west Dallas County by unnecessarily

placing Latinos” into two already Latino districts to

make HD105 more Anglo, and more strongly protective of the incumbent Republican. Id. at 172a. The

district court concluded that this strategy was intentional discrimination in violation of the VRA.

3. The mapmakers split the City of Killeen in

Bell County, a paradigmatic community of interest,

between two districts “to ensure that” those districts

“remained Anglo-majority, and would reelect Republican incumbents.” H.J.S. App. 183a. The district

court found that “the evidence does indicate that

mapdrawers * * * intentionally racially gerrymandered the districts to dilute the minority vote by

moving minority population out of HD54 and moving

Anglo population in.” Id. at 181a. Thus, the court

concluded that mapmakers swapped minority and

Anglo communities to make “it more difficult for minority voters in HD54 to elect their candidate of

choice.” Ibid.

The court reached this conclusion because it

found the reasons offered by the mapmaker who split

Killeen “not credible.” H.J.S. App. 182a-183a. That

representative testified that he believed some areas

in Bell County had more in common with a neighboring county. Id. at 182a. The court, however, rejected

that reasoning as “pretextual” cover for his intent to

“crack[] and dilut[e] the minority vote to ensure Anglo control over both districts.” Id. at 181a. Specifi-

9

cally, although the mapmaker opposed an alternative

map that would have kept Killeen whole because it

had a “land bridge” that connected Killeen to other

communities, “Plan H283 includes land bridges in

other areas and he voted for it.” Id. at 182a-183a.

The court concluded that the legislator was motivated by the knowledge that “a minority coalition district [such as Killeen] would not likely have enough

Republicans to re-elect him.” Id. at 182a.

Accordingly, the background of the current controversy is clear and, for present purposes, essentially undisputed. The Texas Legislature drew the particular districts that we address for the specific, raceconscious purpose of disadvantaging Latino voters.

The State’s arguments to the contrary, the district

court found, were pretextual. The question now is

whether these findings of improper intent have any

bearing on the Texas Legislature’s motive in placing

the same districts in a plan it enacted two years later.

B. Texas’s attempt to equate preliminary findings with a final decision on the merits is

unavailing.

In defending districts that initially were drawn

for these manifestly improper purposes, Texas insists

that the district lines used in Plan H358 must be valid because the district court approved the same lines

in the interim plan it set in 2012. As Texas would

have it, that approval means that the challenged districts should be treated as court-drawn, so that the

district court, in the decision below, found that “its

own maps were infected with the ‘taint of discrimina-

10

tory intent.’” Texas Br. 1 (emphasis in original).6

This contention is central to the State’s case; as appellees note (Appellees’ Br. 1), Texas repeats the assertion that the challenged plan is “court-drawn” or

“court imposed” at least eleven times throughout its

brief.

This facially improbable contention, however, is

wrong. The district court’s avowedly preliminary and

interim approval of the challenged districts—a product of exigent circumstances and severe time constraints—was not intended to be, and could not reasonably have been taken by Texas legislators to have

been intended as, an endorsement of the ultimate validity of these districts. In fact, Texas’s novel theory

disregards not only the plain meaning of “preliminary” and “interim,” but also this Court’s longstanding precedent and the Federal Rules’ established procedures for combining preliminary and final relief. Plan H358 was not the district court’s

plan; it was the Texas Legislature’s plan. The reality

is that all the districts at issue were drawn by the

Legislature, some in 2011 and the rest in 2013.

1. A preliminary injunction is not a decision

on the merits.

a. Texas’s argument is premised on the assumption that the district court’s preliminary, interim

plan reflects the court’s judgment that the districts

included in that plan express an ultimate judgment

that these districts are valid. But that plainly is not

so. As this Court has long recognized, “the findings of

fact and conclusions of law made by a court granting

6 The United States is more restrained in its characterizations,

but does refer to the plan as the court’s “own.” U.S. Br. 24.

11

a preliminary injunction are not binding at trial on

the merits.” University of Tex. v. Camenisch, 451

U.S. 390, 395 (1981). Although district courts “should

make the findings of fact and conclusions of law that

are appropriate to the interlocutory proceeding,” these findings must not be treated as a “decision * * * on

the merits.” Public Serv. Comm’n of Wis. v. Wis. Tel.

Co., 289 U.S. 67, 71 (1933).

It is because “the necessity for an expeditious

resolution often means that the injunction is issued

on a procedure less stringent than that which prevails at the subsequent trial” that preliminary injunctions are not final. Thornburgh v. American Coll.

of Obstetricians & Gynecologists, 476 U.S. 747, 755756 (1986), overruled on other grounds by Planned

Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).

On later review, a court may reverse some or all of

its initial findings based on a more fully developed

record and greater time for deliberation. Thus, “any

conclusions reached at the preliminary injunction

stage are subject to revision.” Walters v. National

Ass’n of Radiation Survivors, 473 U.S. 305, 317

(1985) (citing Camenisch, 451 U.S. at 395).

This principle has never been in doubt. As recently as last Term, the Court affirmed that

“[c]rafting a preliminary injunction is an exercise of

discretion and judgment,” the purpose of which “is

not to conclusively determine the rights of the parties, but to balance the equities as the litigation

moves forward.” Trump v. International Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (internal citations omitted). The Court has made clear that

the same standard governs a district court’s decision

to accept or depart from elements of a State’s pro-

12

posed redistricting plan when “drafting an interim

plan.” Perry v. Perez, 132 S. Ct. 934, 941-942 (2012).

b. Lower courts have consistently recognized the

“significant differences between a preliminary injunction and a permanent injunction or other final

disposition on the merits.” Zen Music Festivals,

L.L.C. v. Stewart, 72 F. App’x 168, 170 (5th Cir.

2003); see also Ben. Pension Tr. v. United States, 888

F.2d 1111, 1114 (6th Cir. 1989) (collecting cases).

These holdings have special relevance here: they

drive home what the district court in this case meant

by its interim ruling—and that Texas surely recognized, both at that time and when it adopted Plan

H358, that the interim ruling was not a definitive

resolution of the propriety of the districts approved

by the district court for temporary use in 2012.

Thus, as Judge Jerome Frank wrote for the Second Circuit more than 60 years ago, a “preliminary

injunction * * * is, by its very nature, interlocutory,

tentative, provisional, ad interim, impermanent, mutable, not fixed or final or conclusive, [and] characterized by its for-the-time-beingness.” Hamilton

Watch Co. v. Benrus Watch Co., 206 F.2d 738, 742

(2d Cir. 1953); see also 42 Am. Jur. 2d Injunctions

§ 276 (2018) (explaining that preliminary injunctions

“by their very nature are interlocutory, tentative,

and impermanent”).

Accordingly, preliminary findings of fact and

conclusions of law have “no binding effect whatsoever.” Clark v. K-Mart Corp., 979 F.2d 965, 969 (3d Cir.

1992) (citing Camenisch, 451 U.S. at 395-396)); see

also Industrial Bank of Wash. v. Tobriner, 405 F.2d

1321, 1324 (D.C. Cir. 1968) (explaining that such

findings “should not be regarded as binding in further proceedings”). This is because such proceedings

13

are “based upon procedures that are less formal and

evidence that is less complete than in a full trial.”

Technical Publ’g Co. v. Lebhar-Friedman, Inc., 729

F.2d 1136, 1139 (7th Cir. 1984).

2. The district court emphasized the limited

nature of its holding.

a. That rule governs in this case. Facing extreme

limits on its ability to conduct a full review, the district court repeatedly “emphasize[d] the preliminary

and temporary nature” of the 2012 interim map.

H.J.S. App. 314a. Contrary to Texas’s representations, the district court stressed that “nothing in this

opinion reflects this Court’s final determination of

any legal or factual matters.” Id. 303a (emphasis

added).

Little wonder why; the court was operating under “severe time constraints.” H.J.S. App. 356a. With

barely more than a month to develop its plan, the

court was forced to make preliminary findings on an

incomplete and underdeveloped record.7 Due to the

The resolution of complex redistricting cases almost always

takes more time than the district court was able to devote to

consideration of the interim challenge in this case. The average

time from trial to disposition of a redistricting case in the Fifth

Circuit is five months. See, e.g., Rodriguez v. Harris Cty., 964 F.

Supp. 2d 686 (S.D. Tex 2013) (8.5 months from trial to conclusion that there was no Section 2 violation); Fairley v. City of

Hattiesburg, 122 F. Supp. 3d 553 (S.D. Miss. 2015) (9.5 months

from trial to conclusion that there was no Section 2 violation);

Fabela v. City of Farmers Branch, No. 3:10-CV-1425-D (N.D.

Tex. Jan. 1, 2013) (6 months from trial to implementation of

new plan to remedy Section 2 violations); Hall v. Louisiana, 108

F. Supp. 3d 119 (M.D. La. 2015) (6.5 months from trial to conclusion that there was no Section 2 violation); Terrebonne Par.

Branch NAACP v. Jindal, 274 F. Supp. 3d 395 (M.D. La. 2017)

(3.5 months from trial to conclusion that there was a Section 2

7

14

“exigent circumstances created by the need for timely

2012 primaries and general elections in Texas” (id.

at 303a), the court was not able to—and indeed, did

not try to—adjudicate the merits. The court simply

did the best that it could, while “warn[ing] repeatedly that its determinations could change after a full

trial on the merits.” Id. at 356a n.42. This is, indeed,

a ruling characterized by its “for-the-time-beingness.”

b. Preliminary injunctions are preliminary for

this very reason. Courts must make fast determinations on relatively little information. Faced with such

record and time constraints, “[i]t is universally true

that courts are more willing to grant permanent injunctions than preliminary injunctions.” Douglas A.

Laycock, The Death of the Irreparable Injury Rule,

103 Harv. L. Rev. 687, 731 (1990). And “[p]reliminary injunctions are * * * often denied in substantive areas where all injury is irreparable and permanent injunctions are routine, such as * * * civil rights

and civil liberties.” Id. at 732 (footnote omitted). As

remedies scholars have explained, “[t]he reasons a

court may be cautious in awarding preliminary relief

are clear. The court must act without a full trial,

sometimes with only sketchy motion papers and affidavits to guide its decision.” Id. at 728; see also Linda J. Silberman, Injunctions by the Numbers: Less

violation, with the issue of a remedial map still pending); Benavidez v. Irving Indep. Sch. Dist., No. 3:13-CV-0087-D (N.D.

Tex. Oct. 20, 2014) (2.5 months from trial to implementation of

a new plan to remedy Section 2 violation); York v. City of St.

Gabriel, 89 F. Supp. 3d 843 (M.D. La. 2015) (2 months from trial to conclusion that there was no Section 2 violation); Patino v.

City of Pasenda, 230 F. Supp. 3d 667 (S.D. Tex. 2017) (1 month

from trial to implementation of interim map to remedy Section

2 violation).

15

Than the Sum of Its Parts, 63 Chi.-Kent L. Rev. 279,

300-301 (1987) (“[B]ecause of the preliminary nature

of the relief and the expedited nature of the proceeding, there is often not a fully developed factual record. The district judge is often acting more on hunch,

probability, and speculation than he would be in a

full-scale trial for permanent relief.”). Therefore,

courts rarely grant full injunctive relief at the preliminary stage.

It is thus no surprise that the district court

granted only partial relief here. Acting under severe

record and time constraints—and mindful of the cost

to the State—the court invalidated only some of the

challenged districts. Later, with the full record in

hand and time for reflection, the court invalidated

additional districts.

This again should come as no surprise to Texas.

Courts reverse their determinations between the preliminary and final stages of litigation all the time.

District courts frequently deny preliminary relief only to grant permanent relief,8 and vice versa.9 Appel-

8 See, e.g., United Motorcoach Ass’n, Inc. v. City of Austin, 851

F.3d 489, 492 (5th Cir. 2017) (discussing a district court permanently enjoining the enforcement of a city regulation, despite

denial of preliminary relief); Public Interest Research Grp. v.

Powell Duffryn Terminals Inc., 913 F.2d 64, 69-70 (3d Cir.

1990) (discussing a district court permanently enjoining the defendant from violating a Clean Water Act permit, despite denial

of preliminary relief); Nalpac, Ltd. v. Corning Glass Works, 784

F.2d 752, 753-754 (6th Cir. 1986) (discussing a district court

permanently enjoining the defendant from use of a trademark,

despite denial of preliminary relief); Bynes v. Toll, 512 F.2d

252, 253 (2d Cir. 1975) (discussing a district court permanently

enjoining the defendant-university from enforcing a discriminatory residency agreement, despite denial of preliminary relief).

16

late courts likewise reverse preliminary injunctions

only to later affirm permanent ones.10 Preliminary

relief is, by its very nature, temporary. There is nothing strange or untoward about the district court revising its initial determinations in light of a finished

record and time for considered judgment. Texas cannot claim that its plans were upset by an ordinary

reversal of fortunes, of the sort litigants routinely

face.

c. Texas unsuccessfully attempts to shrink the

gap between preliminary and final relief by suggesting that the district court applied “a standard

uniquely favorable to plaintiffs.” Reply Supporting

H.J.S. 6 (emphasis omitted). This argument misunderstands the governing standard.

That standard is pro “status quo” (42 Am. Jur. 2d

Injunctions § 9), not pro-plaintiff. A preliminary injunction is an “extraordinary remedy” (Winter v.

NRDC, 555 U.S. 7, 24 (2008)), enacted “merely to

preserve the relative positions of the parties until a

See, e.g., Sole v. Wyner, 551 U.S. 74, 77 (2007) (addressing

whether “a plaintiff who gains a preliminary injunction after an

abbreviated hearing, but is denied a permanent injunction after

a dispositive adjudication on the merits, qualif[ies] as a ‘prevailing party’” for attorneys’ fees purposes); Common Cause/Georgia v. Billups, 554 F.3d 1340, 1347-1348 (11th Cir. 2009) (denying a permanent injunction in a voter ID law case, despite the

issuance of preliminary relief).

9

Compare Los Angeles Mem’l Coliseum Comm'n v. National

Football League, 634 F.2d 1197, 1204 (9th Cir. 1980) (reversing

a preliminary injunction, because plaintiffs had not shown a

likelihood of irreparable injury), with Los Angeles Mem'l Coliseum Comm’n v. National Football League, 726 F.2d 1381, 1401

(9th Cir. 1984) (affirming a permanent injunction in the same

case, because plaintiffs had shown irreparable injury during the

trial).

10

17

trial on the merits can be held.” Camenisch, 451 U.S.

at 395. The purpose of the standard is to “balance the

equities” (Trump, 137 S. Ct. at 2087) and preserve

the litigating positions of the parties for trial. For

that reason, “[a]n injunction is considered an extraordinary remedy that should be exercised sparingly and cautiously.” 42 Am. Jur. 2d Injunctions § 17

(footnotes omitted). Here, that standard militated in

favor of the court preserving for interim use the district boundaries initially drawn by the Texas Legislature.

Texas’s arguments thus misstate the standard. It

is no surprise that the district court denied the plaintiffs full relief on a slim record and under extreme

time pressure. Texas cannot shield its map from further constitutional review in reliance on relief that

was, by its very nature, ephemeral and extraordinary.

3. Texas cannot evade review by relying on

the court’s interim findings.

Against this background, Texas could not reasonably have believed that the district court’s interim findings established the ultimate validity of the

districts incorporated in the 2012 plan. The State’s

current suggestion that it expected use of districts

permitted by the interim plan to end the redistricting litigation therefore simply is not plausible.

a. Courts have long cautioned litigants against

placing too much faith in preliminary findings. In

circumstances generally similar to those here, the

Second Circuit recently chided a state university for

relying on statements in an order granting preliminary relief. As the Second Circuit explained:

18

[The university]—or certainly its able counsel—surely knew the risks of such reliance.

“A decision on a preliminary injunction is, in

effect, only a prediction about the merits of

the case,” thus, “findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding,” and “do

not preclude reexamination of the merits at a

subsequent trial.”

Biediger v. Quinnipiac Univ., 691 F.3d 85, 107 (2d

Cir. 2012) (quoting Morris v. Hoffa, 361 F.3d 177,

189 (3d Cir. 2004); Camenisch, 451 U.S. at 395; and

Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638,

644 (2d Cir.1998)).

Courts have likewise rejected similar reliance

arguments by patent litigants. Defendants in a recent pharmaceutical case contended that they reasonably relied on the court’s denial of preliminary relief in issuing a competing product. The court rejected this argument: “Although Defendants did not

launch their generic product until after the preliminary injunction was denied, the preliminary injunction was, by definition, preliminary and not a final

ruling on the validity of the * * * patent.” SanofiAventis Deutschland GmbH v. Glenmark Pharms.

Inc., 821 F. Supp. 2d 681, 695 (D.N.J. 2011), aff’d

and remanded, 748 F.3d 1354 (Fed. Cir. 2014).

b. Appellate courts have similarly cautioned dis-

trict courts against overreliance on their own preliminary findings.

As the Seventh Circuit has explained, “exclusive[]” reliance on preliminary findings “can be a

risky approach. A court must be cautious in adopting

findings and conclusions from the preliminary in-

19

junction stage in ruling on a motion for summary

judgment.” Communications Maint., Inc. v. Motorola,

Inc., 761 F.2d 1202, 1205 (7th Cir. 1985); see also

Lac Du Flambeau Band of Lake Superior Chippewa

Indians v. Stop Treaty Abuse-Wis., Inc., 991 F.2d

1249, 1258 (7th Cir. 1993) (“[W]e have advised district courts to be cautious in [subsequently] adopting

conclusions of law made in ruling on a preliminary

injunction because the posture of the case at that

time inevitably entails incomplete evidentiary materials and hurried consideration of the issues.”).

Appellate courts thus frequently reverse grants

of summary judgment where the district court improperly relied on denial of preliminary relief to justify summary judgment. For example, the Sixth Circuit reversed where the district court concluded that

the “magistrate’s recommendation denying the appellant’s motion for a preliminary injunction, as

adopted by the district court, was dispositive of the

summary judgment motion.” William G. Wilcox,

D.O., P.C. Employees’ Defined Benefit Pension Tr. v.

United States, 888 F.2d 1111, 1113 (6th Cir. 1989).

As the court explained, “a trial court’s disposition of

the substantive issues joined on a motion for extraordinary relief is not dispositive of those substantive issues on the merits.” Id. at 1114. Other appellate courts agree,11 as do the leading treatises. See,

See, e.g., Golden State Transit Corp. v. City of Los Angeles, 754 F.2d 830, 832 n.3 (9th Cir.1985) (“As a general rule, decisions on preliminary injunctions do not constitute law of the

case and ‘parties are free to litigate the merits.’”) (quoting City

of Anaheim v. Duncan, 658 F.2d 1326, 1328 n.2 (9th Cir.

1981), rev’d on other grounds, 475 U.S. 608 (1986)); Berrigan v.

Sigler, 499 F.2d 514, 518 (D.C. Cir. 1974) (“The decision of a

trial or appellate court whether to grant or deny a preliminary

11

20

e.g., 18 C. Wright, A. Miller & E. Cooper, Federal

Practice & Procedure § 4478 (1981) (“Rulings that

simply deny extraordinary relief for want of a clear

and strong showing on the merits, or that are avowedly preliminary or tentative, do not trigger law of

the case consequences.”).

4. There is a procedure for combining preliminary hearings with a decision on the

merits, but it was not used here.

Texas’s reliance on preliminary findings is not

only wrong; it ignores an established procedure for

combining preliminary relief with a final decision on

the merits. Neither the district court nor Texas pursued this procedure here.

Federal Rule of Civil Procedure 65(a)(2) sets out

a process for combining preliminary and final relief:

“Before or after beginning the hearing on a motion

for a preliminary injunction, the court may advance

the trial on the merits and consolidate it with the

hearing.” Fed. R. Civ. P. 65(a)(2).

This procedure requires advance notice to the

parties. As this Court has explained:

Before such an order may issue, however, the

courts have commonly required that “the

parties should normally receive clear and

unambiguous notice [of the court’s intent to

consolidate the trial and the hearing] either

before the hearing commences or at a time

injunction * * * does not limit or preclude the parties from litigating the merits * * * . [S]uch rulings [do] not preclude the district court, nor should they dissuade us, from taking a fresh

look.”) (footnotes omitted).

21

which will still afford the parties a full opportunity to present their respective cases.

Camenisch, 451 U.S. at 395 (quoting Pughsley v.

3750 Lake Shore Drive Coop. Bldg., 463 F.2d 1055,

1057 (7th Cir. 1972)).

If the Rule 65(a)(2) process is not specifically invoked, it is generally improper to adopt findings from

a preliminary hearing at the merits stage without

additional explanation. See, e.g., Sanchez v. Esso

Standard Oil Co., 572 F.3d 1, 15 (1st Cir. 2009).

“When a trial court ‘disposes of a case on the merits

after a preliminary-injunction hearing without expressly ordering consolidation * * * it is likely that

one or more of the parties will not [have] present[ed]

their entire case at [the] unconsolidated preliminaryinjunction hearing.’ Therefore, it is ordinarily improper to decide a case solely on such a basis.” Ibid.

(quoting 11A C. Wright, A. Miller, & E.

Kane, Federal Practice and Procedure § 2950 (2009)).

Accordingly, the controlling principle is clear:

preliminary findings of fact and conclusions of law

are far from final. Litigants rely on such determinations at their peril, and the district court here would

have erred had it found that its interim plan insulated the districts utilized in that plan from further review—that is, if it had done what Texas now says it

should have done. That the Texas Legislature took

account of the interim plan in 2013 when it drew

Plan H358 may bear on the Legislature’s intent at

that time, but the existence of the plan cannot be a

magic bullet that wins the case for the State or erases the intent that actually underlay the 201 plan..

22

C. Interim court approval of districts created

with a discriminatory purpose does not

launder out the discrimination when those

same districts are re-enacted.

Texas also makes a closely related argument

from the district court’s promulgation of the interim

plan. As Texas tells the story, the court blessed the

districts challenged here, in the process laundering

out the discriminatory intent of the 2011 Legislature.

The Legislature’s adoption of the interim plan, the

story continues, then effectively became implementation of a benign court-ordered plan rather than reenactment of a discriminatory one. Texas Br. 36 (arguing that 2013 plan adopted simply to “bring existing litigation to an end”); see U.S. Br. 41. But this

story is a tall tale. Texas’s purported reliance on the

district court’s blessing cannot end the inquiry; the

Legislature’s actual intent remains subject to inquiry.

That determination “demands a sensitive inquiry

into * * * circumstantial and direct evidence of intent.” Village of Arlington Heights v. Metropolitan

Hous. Dev. Corp., 429 U.S. 252, 266 (1977). It has

long been understood that evidence a court may consider in assessing legislative intent includes such

considerations as (1) any disparate impact on the

protected class; (2) “[t]he historical background of the

decision * * * particularly if it reveals a series of official actions taken for invidious purposes”; (3) “[t]he

specific sequence of events leading up to the challenged decision”; and (4) the “legislative or administrative history.” Id. at 266-268 (citations omitted).

And a closer “examination of the legislative scheme

and its history demonstrates” that Texas’s motive in

enacting the 2013 redistricting maps was, in fact, to

23

disadvantage minority voters. Weinberger v. Wiesenfeld, 420 U.S. 636, 648 n.16 (1975).12

1. Texas’s real motive was to re-enact the

discriminatory 2011 maps.

In characterizing the legislative motive, Texas’s

central argument appears to be that, in re-enacting

the district court’s interim plan, the Texas Legislature’s intent was simply to adopt a court-approved

plan as a way to end the redistricting litigation, thus

rendering irrelevant the 2011 plan (and the associated finding of improper motive). But the State’s assertion of this anodyne intent cannot be the end of the

story.

As the Court has held, “the mere recitation of a

benign[] * * * purpose is not an automatic shield

which protects against any inquiry into the actual

purposes underlying a statutory scheme.” Wiesenfeld,

420 U.S. at 648. That the Texas Legislature chose to

12 Even accepting the State’s counter-factual premise that Tex-

as simply implemented a court-ordered plan in 2013 would not

end the inquiry. Court-ordered plans may themselves violate

the Constitution or the Voting Rights Act. See, e.g., Connor v.

Finch, 431 U.S. 407 (1977) (overturning a court-ordered reapportionment plan for failing to meet “one-person, one vote”);

Chapman v. Meier, 420 U.S. 1, 27 (1975) (same). And when a

legislature adopts a court’s plan, the plan is still subject to substantive review. For example, under the Voting Rights Act,

“[e]ven in the[] cases” where a court orders a plan, “if the governmental body subsequently adopts a plan patterned after the

court’s plan, Section 5 review would be required.” See McDaniel

v. Sanchez, 452 U.S. 130, 149 (1981). Whenever a legislature

“submits a proposal reflecting the policy choices of the elected

representatives of the people—no matter what constraints have

limited the choices available to them,” substantive review is

available. Id. at 153.

24

include in its permanent plan districts that the district court had approved for interim use says nothing

about the Legislature’s actual motive in making that

choice; as with any statute, the 2013 redistricting

plan is subject to examination under the ordinary

standards used to determine legislative intent. See

U.S. Br. 25 (citing Hunt v. Cromartie, 526 U.S. 541,

549 (1999)). Here, that inquiry leaves no doubt that

Texas’s real motive in 2013 was not to codify the

2012 interim plans or to avoid litigation; it was to

leave the discriminatory 2011 maps in place.

By asking the Court to completely disregard the

2011 redistricting maps, Texas seeks to have its intent evaluated “only from the latest news about the

last in a series of governmental actions.” McCreary

Cty. v. ACLU, 545 U.S. 844, 866 (2005). “But,” as the

Court has stated, “the world is not made brand new

every morning.” Ibid. In arguing to the contrary,

Texas is “simply asking [the Court] to ignore perfectly probative evidence.” Ibid. In assessing legislative

purpose, however, the Court is not “an absentminded

objective observer,” but one “presumed to be familiar

with the history of the government’s actions and

competent to learn what history has to show.” Ibid.

In fact, the 2011 plans remain relevant to the determining the intent of the 2013 Legislature—and

powerfully demonstrate improper legislative intent

in 2013—for several reasons.

First, under fundamental principles of statutory

interpretation, courts presume that legislatures are

aware of past legislative and judicial actions. Of particular relevance to this case,13 a legislature “is preCourts also presume that legislatures are aware of: other

substantially similar statutes, see, e.g., Lockhart v. United

13

25

sumed to be aware of * * * [a] judicial interpretation

of a statute and to adopt that interpretation when it

re-enacts a statute without change.” Lorillard v.

Pons, 434 U.S. 575, 580 (1978). Here, the Texas district court held that the Texas Legislature adopted

the 2011 plan with a discriminatory purpose. And in

2012, even after the Texas court adopted its interim

plan, the District Court of the District of Columbia

held that the 2011 Texas congressional redistricting

plan had been adopted with a discriminatory purpose

and suggested in the strongest terms that the Texas

House plan had been as well. Texas v. United States,

887 F. Supp.2d 133, 159-166, 177-178 (D.D.C. 2012)

(noting, regarding House plan, that “the full record

strongly suggest[s]” that the retrogressive effect

“may not have been accidental”), vacated and remanded, 570 U.S. 928 (2013). Yet the Texas Legislature, aware of the holding that specific line-drawing

decisions had been taken for discriminatory purposes, left those same lines in place in 2013. This failure

of Texas to alter the 2011 maps “following a contemporaneous and practical interpretation” that they

were racially discriminatory “is evidence of an intent

to adopt such interpretation.” 2B Sutherland Statutes and Statutory Construction § 49:9 (7th ed. 2017).

Second, Texas claims that the court below “confuses discriminatory effect, which at least is capable

of being carried over from one law to another, with

discriminatory intent, which decidedly is not.” Texas

Br. 17. But it is Texas that is confused. The argument here is not that the 2011 Legislature’s intent

States, 136 S. Ct. 958, 964 (2016); the common law, see, e.g.,

Smith v. Wade, 461 U.S. 30, 34 (1983); and longstanding agency

interpretations of statutes, see, e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 156 (2000).

26

was copied and pasted into to the 2013 legislation; it

is that actors typically mean to accomplish the obvious and probable consequences of their actions, as

Texas did when it left unchanged the discriminatory

districts drawn by the Legislature in 2011. And “given an initially tainted policy, it is eminently reasonable to make the State bear the risk of nonpersuasion with respect to intent at some future

time, both because the State has created the dispute

through its own unlawful conduct * * * and because

discriminatory intent does tend to persist through

time.” United States v. Fordice, 505 U.S. 717, 746747 (1992) (Thomas, J., concurring). That is particularly so given the lengthy history of redistricting violations in Texas, which should lead a court to view

Texas’s current protestations of innocence with a

jaundiced eye: In every redistricting cycle since 1970,

this Court has found that Texas violated the VRA

with racially gerrymandered districts. See LULAC v.

Perry, 548 U.S. 399 (2006); Bush v. Vera, 517 U.S.

952 (1996); Upham v. Seamon, 456 U.S. 37 (1982);

White v. Weiser, 412 U.S. 783 (1973); White v.

Regester, 412 U.S. 755 (1973).14

Third, the State argues that any “claims against

Texas’s 2011 redistricting plans became moot when

the 2013 Legislature repealed the 2011 plan.” Texas

Br. 42 (internal quotation marks omitted). But this,

14 Texas had the second highest number of VRA Section 5 objec-

tions of any covered state. See Department of Justice, Voting

Determination Letters for Texas, perma.cc/3CK4-KDKB. In at

least 54 instances, Texas withdrew a proposed voting change

after it became clear that it would not be pre-cleared. See Nina

Perales, Luis Figueroa & Criselda G. Rivas, Voting Rights in

Texas: 1982-2006, 17 S. Cal. Rev. L. & Soc. Just. 713, 714

(2008).

27

again, is an exercise in misdirection. The claim here

is not that the district court retained the power to

enter judgment on the merits of the 2011 redistricting plans; it is that the discriminatory intent of the

2011 plans remains relevant in assessing the validity

of identical portions of the 2013 plans.

Fourth, even if it assumed that ending the litigation was one of Texas’s motives,15 that is not the end

of the matter. Appellees need not “prove that the

challenged action rested solely on [a] racially discriminatory purpose[],” or even that it “was the ‘dominant’ or ‘primary’ one.” Village of Arlington Heights,

429 U.S. at 265 (emphasis added). Instead, a redistricting plan violates the Equal Protection Clause if

racial discrimination was a motivating factor. And

here, any hope that Texas entertained of ending this

litigation by adopting the district court’s interim

plan was incidental to the Legislature’s larger (and

closely related) goal of insulating from further challenge maps that discriminated against Latino voters.

Fifth, and perhaps most notably, the district

court in fact found that Plan H358 was enacted with

a discriminatory purpose. Appellees recount the district court’s findings in detail, showing that the Texas Legislature not only made no attempt to cure

what the district court previously had found to be

And that is a dubious assumption; the district court found

that the Texas Legislature “did not believe that passing the interim maps would end the litigation.” H.J.S. App. 358a n.45.

Rather, the Legislature knew that the “Plaintiffs would continue to pursue relief” as they had against the identical districts in

Plan H283. Ibid. In fact, the court found that Texas Legislative

Council Attorney Jeff Archer informed the legislators that “they

had not realistically removed legal challenges to the plans apart

from those areas remedied by the interim plans.” Ibid.

15

28

discriminatory line-drawing, but “purposefully maintained the intentional discrimination contained in

Plan H283” (H.J.S. App. 6a); that “the 2013 Legislature intended to continue the intentional discrimination found in Plan H283” (id. at 22a); that the Legislature in fact “intended any such taint to be maintained but be safe from remedy” (id. at 359a); and

that the legislature acted with a strategy that was

“discriminatory at its heart.” Ibid. As appellees also

show, this finding is reviewed under a highly deferential standard. Appellees’ Br. 41-43. That finding is

amply supported by the record and bolstered by the

governing legal principles. It should be affirmed.

2. Texas had an affirmative duty to remove

the taint of racial discrimination.

Finally, once a court determines that a state actor has engaged in purposeful discrimination, the

“racial discrimination [must] be eliminated root and

branch.” Green v. County Sch. Bd., 391 U.S. 430,

437-438 (1968). The proper remedy for an unconstitutional exclusion aims to “eliminate so far as possible the discriminatory effects of the past and to bar

like discrimination in the future.” United States v.

Virginia, 518 U.S. 515, 547 (1996) (emphasis added)

(internal quotation marks and brackets omitted).

Once the district court found racial discrimination in the 2011 maps, the Texas Legislature was obligated to remove the discriminatory taint before enacting new maps. Texas contends that the imposition

of this requirement “reverse[s] the burden of proof

entirely.” Texas Br. 31. But that is not so. We agree

that the ultimate burden of proof remains on the

plaintiffs. But to return to Justice Thomas’s observation, in these circumstances “it is eminently reasonable to make the State bear the risk of nonpersua-

29

sion.” Fordice, 505 U.S. at 746-747 (Thomas, J., concurring) (citations omitted). Whether or not the

standard is formulated “in terms of a burden shift

with respect to intent,” the factors the Court “do[es]

consider—the historical background of the policy, the

degree of its adverse impact, and the plausibility of

any justification asserted in its defense—are precisely those factors that go into determining intent under

Washington v. Davis, 426 U.S. 229 (1976).” Id. at

747.

Here, the Texas Legislature “does not discharge

its constitutional obligations until it eradicates policies and practices traceable to its prior” discriminatory legislation. Fordice, 505 U.S. at 728. But Texas

has not “completely abandoned its prior [discriminatory] system.” Id. at 729. Instead, “the State perpetuate[d] policies and practices traceable to its prior

system that continue to have [discriminatory] effects,” “run[ning] afoul of the Equal Protection

Clause.” Id. at 732. Cf. Keyes v. School Dist. No. 1,

Denver, Colo., 413 U.S. 189, 208 (1973) (“[A] finding

of intentionally segregative school board actions” in

one portion of the school system “creates a presumption” that other actions have the same intent.).

The common sense of the matter is not really debatable. In 2011, the Texas Legislature drew maps

for the purpose of discriminating. Two years later,

when given an opportunity to remedy this wrong,

many of the same legislators, guided by the same legislative leadership, put in place identical maps that

will have the same discriminatory effect. In this context, the contention that discriminatory intent has

somehow fallen out of the case is, to quote Texas,

“every bit as implausible as it sounds.” Texas Br. 1.

30

CONCLUSION

If the Court does not dismiss the case for lack of

jurisdiction, as appellees urge, it should affirm the

judgment of the district court.

Respectfully submitted.

EUGENE R. FIDELL

Yale Law School

Supreme Court Clinic16

127 Wall Street

New Haven, CT 06511

(203) 432-4992

CHARLES A. ROTHFELD

Counsel of Record

MICHAEL B. KIMBERLY

ANDREW J. PINCUS

PAUL W. HUGHES

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

crothfeld

@mayerbrown.com

Counsel for Amici Curiae

APRIL 2018

16 The representation of amici by a Clinic affiliated with Yale

Law School does not reflect any institutional views of Yale Law

School or Yale University.