Reply Brief — Abbott v. Perez, 138 S. Ct. 735 (2018) (No. 17-586)

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Nos. 17-586, 17-626

In the Supreme Court of the Cnited States

GREG ABBOTT, ET AL., APPELLANTS,

SHANNON PEREZ, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

REPLY BRIEF FOR APPELLANTS

PAUL D. CLEMENT KEN PAXTON

ERIN E. MURPHY Attorney General of Texas

KIRKLAND & ELLIS LLP JEFFREY C. MATEER

655 Fifteenth Street, N.W. First Assistant

Washington, D.C. 20005 Attorney General

Scott A. KELLER

Solicitor General

Counsel of Record

MATTHEW H. FREDERICK

Deputy Solicitor General

ANDREW B. DAVIS

Assistant Solicitor General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

scott.keller@oag.texas.gov

(512) 936-1700

DE Ee

TABLE OF CONTENTS

Reply Brief for Appellants 1

I. This Court Has Jurisdiction To Review The

District Court’s Orders. 4

IL The Legislature Did Not Engage In

Intentional Discrimination When It Enacted

Districts Imposed By The District Court

Itself. 7

A. The District Court’s Intentional

Discrimination Analysis Rests on a Fatally

Flawed Legal Standard. 8

B. There Is No Evidence that the 2013

Legislature Engaged in_ Intentional

Discrimination. 12

Ill. There Never Was Any Vote Dilution Or Racial

Gerrymandering To Begin With In The

Districts Imposed By The District Court In

2012 19

A. There Was No Vote Dilution in Districts

Imposed by the District Court in 2012..........20

1. Intentional-vote-dilution claims require

proof of an actual vote-dilution effect. .....20

2. There was no discriminatory intent or

effect in CD27. 23

3. There was no discriminatory intent or

effect in Bell County state-house

districts. 26

4. There was no discriminatory intent or

effect in Dallas County state-house

districts. 27

(1)

5. There was no discriminatory intent or

effect in Nueces County state-house

districts. 28

B. There Was No Racial Gerrymandering in

CD35. 29

IV. There Was No Racial Gerrymandering In

HD90. 31

Conclusion 33

TABLE OF AUTHORITIES

Page(s)

Cases

Bartlett v. Strickland,

556 U.S. 1 (2009) 3, 16, 21, 22, 31

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

137 S. Ct. 788 (2017) 25, 29

Bush v. Vera,

517 U.S. 952 (1996) 32

Carson v. American Brands, Inc.,

450 U.S. 79 (1981) 5, 6

City of Mobile v. Bolden,

446 U.S. 55 (1980) 20

City of Pleasant Grove v. United States,

479 U.S. 462 (1987) 21

City of Richmond v. United States,

422 U.S. 358 (1975) 21

Cooper v. Harris,

137 S. Ct. 1455 (2017) ..5, 29, 30, 33

Garza v. County of Los Angeles,

918 F.2d 763 (9th Cir. 1990) ..............cccses-ecesees 22

Cases — continued:

Georgia v. Ashcroft,

539 U.S. 461 (2003) .......... 21,23

Growe v. Emison,

507 U.S. 25 (1993) 29

Gunn v. University Committed to End the

War in Viet Nam,

399 U.S. 383 (1970) 6,7

Hunt v. Cromartie,

526 U.S. 541 (1999) 18, 25

Hunter v. Underwood,

471 U.S. 222 (1985) 9, 10

LULAC v. Perry,

548 U.S. 399 (2006) - ae 22, 26, 27

Miller v. Johnson,

515 U.S. 900 (1995) ” 2, 8,9, 11

Mitchell v. Donovan,

398 U.S. 427 (1970) (per curiam) aia 7

Perry v. Perez,

565 U.S. 388 (2012) (per curiam) ................ 1, 3, 13, 22

Pers. Adm’r of Mass. v. Feeney,

Cg OR 8, 11, 25

Rogers v. Lodge,

III cctsschcnscicesctaicchsintninlistetisnintictaaticbiiaindien 21

Shaw v. Hunt,

517 U.S. 899 (1996) ............... - viuitabaionibeaseii 30

Shaw v. Reno,

GOD U.S. GEO (19GB) .....errcccccccecccceccssescvscccersceees 20, 22, 25

Shelby County v. Holder,

ft Ee ee ee 4

Cases — continued:

Sole v. Wyner,

By es ST cada icnenenencresinteneisnoneinienasiensundenasiinsnann 14

Texas v. United States,

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

vacated, 133 S. Ct. 2885 (2O1B) .......cccceccceeeseereeeeeeeee 24

Thornburg v. Gingles,

478 U.S. 30 (1986) sinltshgusteceeduddicinabeiainamians 21

United States v. Fordice,

ee Ce CI itettrterncevenecnrsenesecsiennenenetenseennanetanian 10

Univ. of Tex. v. Camenisch,

451 U.S. 390 (1981) 14

Whitcomb v. Chavis,

403 U.S. 914 (1971) iniadcntnadiaiaiadies 7

Statutes and Constitutional Provisions

Tex. Const. art. III, §40 " 15

28 U.S.C. $1253 5

Ee 5

PER eR) | 5

Plaintiffs’ briefs are a study in revisionist history.

Unable to explain how the Texas Legisiature could have

engaged in intentional racial discrimination by adopting

maps imposed by the district court itself, plaintiffs insist

that the actions of the 2013 Legislature are essentially

irrelevant. They even characterize the 2013 Legisla-

ture’s enactment of the court-ordered plans as “legisla-

tive inaction.” That is nonsensical. The districts plaintiffs

challenge are districts duly enacted by the 2013 Legisla-

ture. The intentions this Court must examine are there-

fore the intentions of the 2013 Legislature. And plaintiffs

cannot blind the Court to the reality that the 2013 Leg-

islature enacted the 2013 maps only after those maps re-

ceived the imprimatur of a federal three-judge district

court.

Plaintiffs protest that the district court did not draw

the challenged districts in the first instance, and that its

2012 decisions imposing the interim maps were “prelim-

inary.” But that misses the point. Except for HD90,

every district invalidated below was subject to pending

claims in 2012. The district court was operating under a

mandate to review those claims and impose maps “that

do not violate the Constitution or the Voting Rights Act.”

Perry v. Perez, 565 U.S. 388, 396 (2012) (per curiam). And

the district court assured the parties that it “obey/ed|

{this} Court’s directive” and remedied all “plausible legal

defects” identified by plaintiffs’ claims against the 2011

maps—as the district court was required to do for all

claims that were merely “not insubstantial” under the

lower VRA §5 standard set forth in this Court’s Perry

decision. H.J.S. App. 313a; accord C.J.S. App. 408a.

(1)

Accordingly, even accepting the fundamentally

flawed notion that the 2013 Legislature was under some

obligation to “remove” any “taint” of intentional discrim-

ination from the court-ordered maps, the district court

itself had already concluded that no such taint existed.

The Legislature cannot plausibly be said to have en-

gaged in intentional discrimination by taking the district

court at its word—particularly given the strong “pre-

sumption of good faith” to which the Legislature’s ac-

tions were entitled and the “extraordinary caution”

courts must apply when confronting claims alleging an

unlawful legislative purpose. Miller v. Johnson, 515 U.S.

900, 916 (1995).

That is all the more true given the context in which

the district court’s assurances came. By the time the

court imposed its remedial maps in 2012, there had al-

ready been: (1) a two-week trial and multiple rounds of

post-trial briefs in 2011, culminating in the first set of

court-ordered remedial maps; (2) an appeal resulting in

this Court’s Perry opinion vacating those maps; and

(3) post-remand hearings and additional briefing on

pending claims—including briefing on claims in the par-

allel §5 proceedings before the D.C. district court.

If the district court truly believed that it lacked suffi-

cient time to adequately address plaintiffs’ claims before

issuing remedial maps, it would have revisited those

claims immediately after the 2012 elections. And if it be-

lieved the remedial maps incorporated any discrimina-

tory “taint” that should have been apparent to the Leg-

islature when it adopted the court-ordered districts in

2013, the district court could not have denied two motions

to enjoin the Legislature’s 2013 plans, leaving them in

place for four years and two election cycles while it adju-

dicated moot claims against the repealed 2011 plans.

Those are hardly the actions of a court concerned that it

may have violated this Court’s mandate to impose maps

“that do not violate the Constitution or the Voting Rights

Act.” Perry, 565 U.S. at 396.

Rather than point to any evidence that the Legisla-

ture enacted the court-imposed plans for a discrimina-

tory purpose (because there is none), plaintiffs accuse

the 2013 Legislature of having “rushed” the plans

through. That is manifestly wrong: The Legislature in

fact heard nearly 33 hours of debate over 11 public hear-

ings, after which it held floor debates spanning over

1,000 pages in the House and Senate journals. But it is

also beside the point. Plaintiffs’ burden was to prove that

the Legislature enacted those plans in a deliberate effort

to sort voters on the basis of race or adversely affect mi-

nority voters. Even assuming (contrary to reality) that

the Legislature had “rushed” the maps through, that

would not begin to prove that the Legislature enacted

court-imposed remedial districts for an illicit purpose.

Moreover, plaintiffs do not dispute that it is not pos-

sible to draw additional performing majority-minority

districts, as defined in Bartlett v. Strickland, 556 U.S. 1,

15 (2009) (plurality op.), in either the congressional or

state-house plans—even though nine groups of plaintiffs

and multiple experts spent more than six years trying to

do so. That shows that plaintiffs’ case is not about legal

defects in the State’s maps or the makeup of the State’s

legislative delegations; it is about plaintiffs’ desire to re-

impose preclearance on the State of Texas after Shelby

County v. Holder, 570 U.S. 529 (2013).

In the end, then, plaintiffs are forced to spend most

of their time complaining about the motivations of the

2011 Legislature. Those complaints are unfounded, as

the district court correctly concluded in 2012 and Judge

Smith’s dissent rightly recognized in 2017. But they are

ultimately irrelevant, as this case is about the actions of

the 2013 Legislature, and plaintiffs did not come close to

meeting their burden of proving an unlawful purpose—

with or without the strong presumption of good faith to

which those actions are entitled.

I. This Court Has Jurisdiction To Review The Dis-

trict Court’s Orders.

The three-judge district court issued orders on the

eve of election deadlines that had the practical effect of

blocking the State from using its existing redistricting

plans for the 2018 elections. The orders did much more

than merely invalidate districts in Plans C235 and H358.

The court concluded that these purported violations

“now require a remedy” and “must be remedied either

by the Texas Legislature or this Court.” C.J.S. App.

118a-119a; see H.J.S. App. 84a, 86a. And it gave the Gov-

ernor just three days to call a special session or, failing

that, ordered defendants to participate in expedited ju-

dicial redistricting. There can be no serious dispute that

if the State had responded by declining to redistrict and

notifying the court that it would still use the existing

plans in the 2018 elections, defendants would have been

held in contempt. Tellingly, plaintiffs do not even try to

claim there was any prospect that the State could still

use Plans C235 or H358 in the 2018 elections. That

should be the end of the matter, as it is plain that the

district court prohibited the State from using its maps in

further elections.

Plaintiffs nonetheless insist that this Court lacks ju-

risdiction under the “plain language” of 28 U.S.C. §1253

because the district court did not label its order an “in-

junction.” H.Br.29.' In other words, they insist that

$1253 imposes a magic-words test. That is the only way

to understand their contention (H.Br.29, 30-31) that this

Court lacks jurisdiction here despite having jurisdiction

in Cooper v. Harris, 137 S. Ct. 1455 (2017), and Gill v.

Whitford, No. 16-1161 (U.S.)—cases where district

courts also invalidated districts and ordered the States

to pass new plans, but had not yet imposed remedial

plans when the States appealed. But this Court has al-

ready rejected a magic-words test in Carson v. Ameri-

can Brands, Inc., holding that appellate jurisdiction

turns on the “practical effect” of a court’s order—not its

label or its precise “terms.” 450 U.S. 79, 83-84 (1981).

Plaintiffs try to limit Carson to 28 U.S.C. §1292(a)(1)

appeals, H.Br.30, but nothing in the text of 28 U.S.C.

§§1253 or 1292 could justify a functional approach for one

and a magic-words test for the other. Section 1292(a)(1)

' The abbreviation “Br.” refers to the Brief for Appellants;

“U.S.Br.” refers to the Brief for the United States as Appellee

in Support of Appellants; “C.Br.” refers to the Brief for Ap-

pellees (Congressional Districts); and “H.Br.” refers to the

Brief for Appellees Other than the United States (State House

Districts).

vests courts with jurisdiction over “[i)nterlocutory or-

ders ... granting ... injunctions,” and §1253 vests this

Court with jurisdiction over “an order granting . .. an in-

terlocutory ... injunction.” The fact that §1292(a)(1) does

not apply “where a direct review may be had in the Su-

preme Court” is relevant only to determining the source

of this Court’s jurisdiction—not to determining what

qualifies as an “injunction.” Nor does it make any differ-

ence that §1253 is interpreted narrowly. H.Br.29-30.

Carson acknowledged that §1292 is interpreted “nar-

rowly” too, yet that did not stop the Court from holding

that an order is appealable under §1292 if it has the

“practical effect” of an injunction. 450 U.S. at 84.

This Court’s decision in Gunn v. University Commit-

ted to End the War in Viet Nam, 399 U.S. 383 (1970),

does not help plaintiffs either. In Gunn, the district court

stayed its order finding a First Amendment overbreadth

violation, then “entered no further order of any kind.” Jd.

at 387. Moreover, the initial order was wholly unclear as

to what “was to be enjoined” and “against whom” any or-

der would run, leading appellants themselves to concede

that it was really an “advisory opinion.” Jd. at 388, 389.

Here, by contrast, there is no doubt about the who, what,

or when: The district court ordered the State immedi-

ately to engage in expedited redistricting, and expressly

refused to stay its order “pending the next session” of

the Texas Legislature, as the court in Gunn had done.

Jd. at 386. The district court thus placed the State in pre-

cisely the same situation as the States in Gill and Cooper,

where this Court exercised appellate jurisdiction.’

Plaintiffs assert that the State’s position “transforms

every declaration of a violation into a de facto injunction.”

H.Br.33. Far from it. Declaratory relief, by itself, is in-

sufficient to invoke this Court’s appellate jurisdiction.

Mitchell v. Donovan, 398 U.S. 427, 430-31 (1970) (per cu-

riam). But where an order goes beyond declaring rights

and compels the State to engage in immediate redistrict-

ing on the eve of election deadlines, there is no escaping

the conclusion that the State has been enjoined from us-

ing its existing map. This Court’s jurisdiction is just as

clear here as it was in Cooper and Gill.

Il. The Legislature Did Not Engage In Intentional

Discrimination When It Enacted Districts Im-

posed By The District Court Itself.

The district court reached the remarkable conclusion

that the Texas Legislature engaged in intentional dis-

crimination when it adopted as its own the same districts

that the court itself ordered the State to use in the 2012

elections. Try as they do, plaintiffs cannot justify that un-

precedented and untenable result. Plaintiffs attempt to

recharacterize the district court’s decision as resting

solely on factual findings about the Legislature’s intent,

* Whitcomb v. Chavis, 403 U.S. 914 (1971), is also consistent

with exercising jurisdiction, as it was an unexplained order

dismissing for lack of jurisdiction where expedited redistrict-

ing had not been ordered. See U.S.Br.23.

in hopes of cloaking it in clear-error review. But the dis-

trict court did not make any finding that the Legislature

acted with improper intent in 2013—because the court’s

fatally flawed “remove the taint” theory obviated the

need to do so. Nor could the court have made any such

finding, as plaintiffs’ paltry evidence does not come close

to establishing intentional discrimination, let alone over-

coming the strong presumption that the Legislature’s

decision to enact the court’s own maps was a good-faith

effort to comply with the Constitution and the VRA and

bring this already-protracted litigation to an end.

A. The District Court’s Intentional Discrimina-

tion Analysis Rests on a Fatally Flawed Legal

Standard.

Plaintiffs’ efforts to defend the district court’s inten-

tional-discrimination holding as a factual finding entitled

to clear-error review, H.Br.41-43; C.Br.1, 40, fail at the

threshold. The district court never found that the 2013

Legislature enacted Plan C235 or H358 for an unconsti-

tutional purpose—that is, in a deliberate effort to © rt

voters on the basis of race, Miller, 515 U.S. at 916-17, or

“because of,’ not merely ‘in spite of,’ its adverse effects

upon an identifiable group,” Pers. Adm’r of Mass. v.

Feeney, 442 U.S. 256, 279 (1979). Instead, the court

faulted the State for failing to prove that the Legislature

“remove[d]” the purported “discriminatory taint” from

the court-imposed plans before adopting them as its own.

C.J.S. App. 46a.

That reasoning is wrong at every turn. First, it evis-

cerates both the strong “presumption of good faith” to

which legislative enactments are entitled and the “ex-

traordinary caution” courts must employ when confront-

ing unlawful-purpose claims. Miller, 515 U.S. at 916. If

anything, the “normal presumption of good faith” should

have been “heightened by the State’s acceptance of the

judicial plan.” U.S.Br.30. Instead, the district court not

only ignored the presumption, but reversed it, demand-

ing that defendants prove that the maps were not

“tainted” with “discriminatory intent.”

For the most part, plaintiffs ignore the presumption

of good faith as well. One of their briefs never even men-

tions it, while the other contends that it does not apply

because the districts imposed by the court in 2012 were

“entirely a product of lines drawn by the Legislature” in

2011. H.Br.36-37. That is wrong as a factual matter, infra

pp.12-14, but it is also beside the point. While the United

States is undoubtedly correct that the presumption ap-

plies with particular force given that the Legislature en-

acted court-imposed maps, the presumption is fully ap-

plicable even on the assumption that those maps were

“legislatively drawn.” H.Br.27. After all, the whole point

of the presumption is to give the benefit of the doubt to

“legislative enactments,” Miller, 515 U.S. at 916, which

the 2013 maps undoubtedly were. The presumption of

good faith did not disappear just because an earlier leg-

islature enacted different maps with purportedly dis-

criminatory intent.

Hunter v. Underwood, 471 U.S. 222 (1985), does not

suggest otherwise. “Hwnter did not involve a subsequent

legislative enactment at all,” U.S.Br.33, let alone a sub-

sequent legislative enactment codifying a judicial order.

There, the legislature merely sat on its hands while the

courts struck down various provisions of a law admit-

tedly passed with discriminatory intent, U.S.Br.30-31,

and this Court expressly reserved judgment on whether

the same law “would be valid if enacted today without

any impermissible motivation.” 471 U.S. at 233. Here,

the Texas Legislature adopted different plans that the

district court concluded remedied any “plausible” legal

defects in the 2011 plans. H.J.S. App. 313a.

Relying on Justice Thomas’s concurrence in l/nited

States v. Fordice, 505 U.S. 717, 746-47 (1992), plaintiffs

also suggest that the presumption is not warranted

where there is a history of discrimination. H.Br.46-47.

But Fordice involved policies continued from a “de jure

system” of racial segregation in public schools—and

even then, the Court still required ongoing “discrimina-

tory effects” to prove liability. 505 U.S. at 745 (Thomas,

J., concurring) (quoting id. at 729 (majority op.)). As Jus-

tice Thomas’s concurrence made clear, the Court consid-

ered “the historical background of the policy, the degree

of its adverse impact, and the plausibility of any justifi-

cation asserted in its defense,” but it did “not formulate

[its] standard in terms of a burden shift with respect to

intent.” Jd. at 747.

Of course, the bare act of reenactment cannot “save”

otherwise invalid legislation “from invalidity,” C.Br.31

n.17, or “insulate” districts “from further challenge, re-

gardless of their legal infirmities,” H.Br.20. Reenact-

ment has no bearing on claims of discriminatory effects,

and it does not definitively answer the question of dis-

criminatory intent. Reenactment does, however, funda-

mentally alter the object of the intent analysis, which is

the intent of the legislature that enacted the challenged

law. And while a court need not blind itself to the history

behind a law’s enactment in assessing that intent, the

new legislation does not lose its presumption of good

faith just because a previous legislature enacted the

same law with an allegedly ‘llicit purpose. See U.S.Br.28-

30.

Regardless, whatever questions may arise when a

legislature enacts the same law but “manufacture[s| new

legislative records,” C.Br.28, that is manifestly not what

happened here. Far from reenacting the 2011 maps, the

2013 Legislature repealed them and replaced them with

maps imposed by the district court itself, which changed

9 congressional and 28 state-house districts. To be sure,

those maps retained some aspects of the 2011 plans, but

it is neither unusual nor legally suspect for a new law to

retain aspects of its predecessor, and that certainly does

not convert separate districting legislation into “legisla-

tive inaction.” C.Br.27-28. Accordingly, the 2013 plans

were entitled to the same presumption of good faith as

any other districting plans, and could be invalidated only

if plaintiffs satisfied their heavy burden of proving that

the legislature enacted the court-imposed maps in a de-

liberate effort to sort voters on the basis of race, Miller,

515 U.S. at 916, or “because of” some unlawful “adverse

effects” on minority voters, Feeney, 442 U.S. at 279.

Plaintiffs cannot short-circuit that analysis by complain-

ing about the motivations of a different legislature in en-

acting a different law.*

B. There Is No Evidence that the 2013 Legislature

Engaged in Intentional Discrimination.

Unable to defend the district court’s legal reasoning,

plaintiffs resort to distorting the record. But their efforts

do not bring them any closer to meeting their heavy bur-

den of proving that the Legislature engaged in inten-

tional discrimination.

1. Plaintiffs first try to avoid the presumption of good

faith by insisting that the court-imposed plans were not

really “the court’s” because they retained some districts

from the 2011 plans. H.Br.36 (emphasis added). That ar-

gument misses the point. Defendants have never claimed

that everything in the court-ordered maps was “the

court’s idea.” H.Br.37. There is no dispute that the court

retained some districts from the 2011 maps. But that is

not an accident, or the product of some hoodwinking by

defendants. It is a direct and intended consequence of

this Court’s decision in Perry, which specifically in-

structed the district court to “take care not to incorpo-

rate into the interim plan any legal defects in the state

plan,” but to preserve districts that were not subject to

“not insubstantial” §5 claims or to constitutional or VRA

* Indeed, plaintiffs previously insisted on separate trials for

the 2011 and 2013 plans because “the state actors responsible

for creating the 2011 and 2013 redistricting plans are differ-

ent.” Plaintiffs’ Advisory in Support of Proposed Scheduling

Order at 4 (Oct. 9, 2013), ECF No. 921.

§2 challenges that were “likely to succeed on the merits.”

565 U.S. at 394.

And that is precisely what the district court did. It

ordered the State to use the 2012 maps only after care-

fully reviewing all pending claims against the 2011 maps

and concluding that every “plausible” legal defect had

been remedied. H.J.S. App. 313a. Plaintiffs claim that

the Legislature was not entitled to rely on the district

court’s orders because they were “preliminary.”

H.Br.37. But the district court assured the parties that it

“obeyled] [this] Court’s directive by adhering to the

State’s enacted plan except in the discrete areas in which

we have preliminarily found plausible legal defects under

the standards of review the Court has announced.”

H.J.S. App. 313a. Preliminary or not, the Legislature

was certainly entitled to take the district court at its

word that it had complied with this Court’s mandate “to

draw interim maps that do not violate the Constitution

or the Voting Rights Act.” Perry, 565 U.S. at 396.

Plaintiffs’ claim that the district court’s 2012 orders

“did nothing more than decline to enter a preliminary in-

junction” against the unprecleared 2011 plans is demon-

strably false. H.Br.28. The district court had already en-

tered a preliminary injunction against those plans in

2011. J.A. 17a. In 2012, the court affirmatively ordered

the State to conduct its upcoming elections under plans

that had been reviewed, approved, and substantially

modified, with changes to 9 congressional and 28 state-

house districts. C.J.S. App. 423a (“This Court has inde-

pendently reviewed Plan C235....”); H.J.S. App. 315a

(referring to “this Court’s independently drawn Plan

H309”). The court did so, moreover, after having con-

ducted two weeks of trial, held several days of hearings,

and received hundreds of pages of briefing on plaintiffs’

claims—including additional briefing and hearings fol-

lowing this Court’s remand. J.A. 4a-20a; C.J.S. App.

380a. That is a world apart from cases where parties “re-

lied on a short stipulation of facts” and underdeveloped

legal theories, Univ. of Tex. v. Camenisch, 451 U.S. 390,

398 (1981), and where the district court was “discon-

certed by the hurried character of the proceeding” that

occurred the day after the preliminary injunction motion

was filed, Sole v. Wyner, 551 U.S. 74, 79 (2007).

In short, the notion that the district court in 2012

“simply ‘defer[red]”” to the preferences of the Legisla-

ture, H.Br.19, strains credulity. The court imposed the

2012 maps only after careful consideration of the very

same challenges pressed here, and with the express as-

surance that they addressed all “plausible legal defects”

in the 2011 plans. H.J.S. App. 313a. The Legislature did

not engage in intentional discrimination by taking the

district court at its word.

2. Plaintiffs next insist that “the Legislature did not

actually believe that ‘passing the interim maps would end

the litigation.” H.Br.43. If they mean that the Legisla-

ture knew plaintiffs would continue to fight them no mat-

ter what maps they passed, then they are certainly cor-

rect. The Legislature did, however, have an eminently

good-faith basis to believe that the district court would

not invalidate the maps that it had just ordered the State

to use. Plaintiffs cite no evidence for their charge that

the 2013 Legislature enacted districts because they were

allegedly “drawn in 2011 for discriminatory reasons.”

H.Br.45.‘ And there is nothing remotely constitutionally

suspect about adopting new maps because they are more

likely than the previous maps to satisfy the Constitution

and VRA. After all, it would be a strange doctrine indeed

that viewed with suspicion efforts by subsequent legisla-

tures to remedy the perceived missteps of their prede-

cessors.

Plaintiffs protest that the 2013 redistricting plans

were adopted too “quickly,’ with no real discussion of

district configurations.” H.Br.43. Nonsense. The redis-

tricting legislation was under consideration for 22 days—

almost the entire 30-day special session. Br. Stat. App.

34a, 36a; Tex. Const. art. III, §40. The House and Senate

committees held more than 30 hours of public hearings

in multiple cities, resulting in more than 1,300 transcript

pages. See 2017 JX-10-15, 20-24. And the separate floor

debate accounted for more than 1,000 pages in the Texas

House and Senate Journals. See 2017 JX-17-18; 2017 JX-

26-27. The Legislature adopted multiple amendments to

Plan H309, and it considered several amendments to

Plan C235, most of which were rejected on bipartisan

votes in the Senate Redistricting Committee. See 2017

JX-24.4.

Plaintiffs charge the Legislature with “(willfully ig-

nor[ing] those who pointed out deficiencies” in the court-

ordered plans. C.Br.21 (citing C.J.S. App. 45a n.45). But

* As for supposed “self-contradictory statements” by “legisla-

tive leaders,” H.Br.43, the cited footnote (H.J.S. App. 358a

n.45) does not identify any such statement.

neither the district court nor plaintiffs identified a single

“deficiency” that was “pointed out” to the Legislature

but ignored. Jeff Archer, an attorney at the Texas Leg-

islative Council, did not identify any “deficiency” in the

court-ordered plans. Instead, his cited testimony con-

sists only of general statements about the procedural

posture in which those orders were issued. See

U.S.Br.42. Notably, Archer specifically declined to dis-

cuss the “validity” or “legal ramifications” of any pro-

posed alternative plan. See 2017 JX-14.4 at 7. Plaintiffs’

counsel MALDEF, by contrast, informed the Legisla-

ture that these remedial plans addressed every defect

identified by the D.C. district court under VRA §5. C.J.S.

App. 436a-439a.

Plaintiffs also argue that the “legislative findings re-

garding the 2013 [state-house] plan were in fact pro-

duced ahead of time by the Texas Attorney General.”

H.Br.43. But the Attorney General’s advice to the Legis-

lature to make its legislative findings part of the statu-

tory text says nothing about the Legislature’s purpose.

And there is no evidence that the Legislature did not be-

lieve those findings—let alone that it did not believe the

* Nor was there any “steadfast refusal’ to consider creating

additional minority opportunity districts.” H.Br.20. Plaintiffs

are really complaining about the Legislature’s decision not to

create additional crossover or coalition districts, which, as

plaintiffs’ congressional brief concedes (C.Br.4 n.2), are not

the same thing as “minority opportunity districts.” The failure

to adopt crossover or coalition districts cannot support a find-

ing of intentional discrimination, as VRA §2 does not require

either one. See Bartlett, 556 U.S. at 15.

district court’s express assurance that it followed this

Court’s directives. See C.J.S. App. 423a; H.J.S. App.

313a.

Rather than engage the legislative history, pleintiffs

distort the timeline to create a false impression that the

2013 Legislature reenacted districts after the district

court had already found them “tainted” by intentional

discrimination. In Bell County, for example, where the

Legislature did not change the district boundaries in

2013, plaintiffs assert that “[t]he court had earlier found

that in configuring the Bell County districts, Repre-

sentative Aycock had deliberately ‘divided the growing

minority City of Killeen to protect his incumbency.”

H.Br.22 (citing H.J.S. Supp. App. 289a). In fact, the dis-

trict court reached that conclusion nearly four years

later, in its 2017 advisory opinion on the 2011 maps. The

2013 Legislature obviously could not have “intended to

continue the intentional discrimination found in Plan

H283,” H.Br.22 (quoting H.J.S. App. 22a), when there

was no such “finding” until 2017.

3. Finally, plaintiffs’ post-hoc efforts to undermine

the conclusions the district court reached in 2012 are en-

tirely unfounded, and provide no basis to question the

Legislature’s good faith in relying on the district court’s

express assurance that it followed this Court’s mandate

to impose maps that complied with the Constitution and

the VRA.

First, plaintiffs’ allegation that the court was not

aware in 2012 that “it was possible to draw two majority

HCVAP districts” in Nueces County, H.Br.38, is irrele-

vant. Mapdrawers relied on Spanish-surname-voter-reg-

istration data when drawing House districts in 2011 be-

cause citizen-voting-age-population data were not avail-

able until late April. H.J.S. App. 129a. There is no evi-

dence that they deliberately refused to consider HCVAP

data. In any case, Texas Legislative Council attorneys

correctly advised that two performing Hispanic-oppor-

tunity districts could not be drawn in Nueces County.

H.J.S. Supp. App. 98a. The Legislature’s decision not to

divide Nueces County in a way that would have diluted

Hispanic voting strength is not evidence of intentional

discrimination.

Second, Representative Aycock’s testimony at retrial

in 2014, H.Br.38, does not support a conclusion of inten-

tional discrimination or racial predominance in HD54.

He merely testified that he attempted to create a Repub-

liean district by adding areas that supported Republi-

cans. Br.54-56. Drawing a Republican district is not ra-

cial discrimination, “even if it so happens that the most

loyal Democrats happen to be [minorities] and even if the

State were conscious of that fact.” Hunt v. Cromartie,

526 U.S. 541, 551 (1999). In any event, the district court

correctly rejected the only claims that plaintiffs actually

brought in Bell County. /nfra pp.26-27.

Third, plaintiffs’ claim that the court had not “heard

from the architect of the challenged districts in western

Dallas County” in 2012 is simply wrong. H.Br.38. That

individual (Ryan Downton) gave extensive live testimony

in 2011, see 2011 Tr. 903-1023, which the district court

cited in its 2012 opinion. C.J.S. App. 411la, 414a, 422a.

* * *

At bottom, neither the record nor common sense sup-

ports the district court’s implausible conclusion that the

Legislature engaged in intentional discrimination when

it embraced court-imposed districts as its own. Plaintiffs

do not even try to explain how the very same districts

could be lawful when imposed by the district court, but

“tainted” with discriminatory intent when later enacted

by the Legislature.

Iil.There Never Was Any Vote Dilution Or Racial

Gerrymandering To Begin With In The Districts

Imposed By The District Court In 2012.

By the time the district court held a second trial on

claims against the 2011 maps, those maps had been re-

pealed, rendering any dispute about the motivations un-

derlying them moot—a proposition that plaintiffs barely

even bother to contest. That said, the district court’s “re-

move the taint” theory fails on its own terms because

there never was any “taint” to “remove” in the first

place.®

* To the extent the district court found intentional discrimina-

tion based on one-person, one-vote violations (see Br.56-58, 62-

63), plaintiffs have waived those arguments by choosing not to

defend them on appeal.

A. There Was No Vote Dilution in Districts Im-

posed by the District Court in 2012.

1. Intentional-vote-dilution claims require

proof of an actual vote-dilution effect.

At the outset, all of the district court’s intentional-

vote-dilution findings were infected by its erroneous con-

clusion that intention-vote-dilution claims do not require

proof of vote dilution. Intentional-vote-dilution claims re-

quire proof of both intent to dilute minority voting

strength and actual dilution of minority voting strength.

See, e.g., Shaw v. Reno, 509 U.S. 630, 641 (1993) (explain-

ing that districts “violate the Fourteenth Amendment

when they are adopted with a discriminatory purpose

and have the effect of diluting minority voting

strength”). Those requirements do not change just be-

cause a plaintiff alleges that vote dilution was “inten-

tional.”

Plaintiffs cannot escape that conclusion by asserting

a constitutional rather than a VRA claim, because the

Constitution no more recognizes an intentional-vote-di-

lution claim without vote dilution than the VRA does. To

the contrary, the constitutional test for vote dilution is

more demanding than the VRA test, as it requires both

discriminatory effects and discriminatory intent. See,

e.g., City of Mobile v. Bolden, 446 U.S. 55, 66-68 (1980)

(plurality op.). As Gingles explained, VRA §2 “was de-

signed to restore the ‘results test’—the legal standard

that governed voting discrimination cases prior to [this

Court’s] decision in Mobile,” under which discriminatory

effects alone were enough to establish a constitutional vi-

olation. Thornburg v. Gingles, 478 U.S. 30, 44 n.8 (1986).

Accordingly, while the Constitution demands discrimina-

tory intent and discriminatory effects after Mobile, VRA

§2 now requires only the latter. But plaintiffs do not and

cannot cite precedent holding that the Constitution re-

quires only the former.

Instead, plaintiffs rely principally on cases involving

VRA §5. See H.Br.48.’ But those cases are readily distin-

guishable, as that statute requires the State to prove that

its voting laws do not have either a discriminatory pur-

pose or a discriminatory effect. See City of Pleasant

Grove v. United States, 479 U.S. 462, 471 (1987); City of

Richmond v. United States, 422 U.S. 358, 378 (1975).

This Court has expressly refused, however, “to equate a

§ 2 vote dilution inquiry with the § 5 retrogression stand-

ard.” Georgia v. Ashcroft, 539 U.S. 461, 478 (2003). And

it has certainly never equated the §5 standard with the

Equal Protection Clause, which requires plaintiffs to

prove both discriminatory intent and discriminatory ef-

fects.

To the extent cases suggest, in dicta, that a law with

a race-based purpose “has no legitimacy at all under our

Constitution,” see Pleasant Grove, 479 U.S. at 471 n.11,

this Court’s modern precedents recognize that as a ra-

cial-gerrymandering claim. For example, Garza v.

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

in Bartlett, 556 U.S. at 20, was decided before this Court

recognized racial-gerrymandering claims in 1993 in

’ Plaintiffs also cite Rogers v. Lodge, 458 U.S. 613 (1982),

H.Br.48, but that case involved actual vote-dilution effect. See

458 U.S. at 623-27.

Shaw, 509 U.S. at 649. Under the Court’s current doc-

trine, the appropriate claim in Garza would be racial ger-

rymandering, because the county redistricted “with the

intent to fragment the Hispanic population” among vari-

ous districts—even though no vote dilution actually oc-

curred. 918 F.2d at 770.

To establish an intentional-vote-dilution claim, then,

plaintiffs must establish both that the Legislature in-

tended to dilute minority voting strength and that the

Legislature succeeded in doing so. And to establish the

latter, plaintiffs must prove that it was possible to draw

an additional performing majority-minority district. See,

e.g., Bartlett, 556 U.S. at 15; LULAC v. Perry, 548 U.S.

399, 430 (2006). As plaintiffs’ congressional brief cor-

rectly recognizes, “[a] minority opportunity district un-

der §2 is one in which minority voters [1] comprise a ma-

jority of eligible voters and [2] have a reasonable oppor-

tunity to elect candidates of their choice.” C.Br.4 n.2. Ac-

cordingly, plaintiffs cannot establish vote dilution by

faulting the Legislature for declining to draw a coalition

district. But see H.Br.49 (alleging intentional vote dilu-

tion in Bell County because the “legislature’s decision to

split Killeen minimized the voting strength of a multi-mi-

nority coalition”). This Court has recognized that VRA

§2 does not require States to draw coalition districts. See

Perry, 565 U.S. at 398 (citing Bartlett, 556 U.S. at 13-15).

And with good reason, as requiring coalition districts

would only inject further considerations of race into re-

districting. Bartlett, 556 U.S. at 21-22.

Plaintiffs nonetheless persist in urging a much

broader conception of vote dilution, insisting that it ex-

ists “whenever the challenged district makes it harder

for the minority community to participate effectively in

the political process.” H.Br.49. That attempt to replace

the long-settled definition of vote dilution with an unde-

fined “discernible discriminatory effect” standard,

H.Br.28, smacks of an effort to resuscitate the VRA §5

retrogression standard, which considers “the diminution

of a minority group’s effective exercise of the electoral

franchise.” Ashcroft, 539 U.S. at 479. But this Court has

expressly refused to export that standard to the VRA §2

or Equal Protection Clause contexts.

In sum, a challenged apportionment scheme either

results in dilution of minority voting strength or it does

not. Alleging intentional vote dilution adds the element

of discriminatory intent, but it does not change the re-

quirement to prove that vote dilution actually occurred.

The district court’s contrary belief fatally infected all of

its intentional-vote-dilution findings on the 2013 plans.

2. There was no discriminatory intent or effect

in CD27.

Under a correct understanding of the law, plaintiffs

did not and could not prove intentional vote dilution in

CD27.* The district court sustained plaintiffs’ claim on

* The district court “did not base its holdings ... on a § 2 ef-

fects claim” in CD27. C.J.S. App. 113a-114a; id. at 113a n.85

(“If ... there was no evidence of improper intent, this would

be a different case ....”). Regardless, there was no vote-dilu-

tion effect in CD27. Br.48-51.

the theory that intent alone was enough. C.J.S. App.

112a-ll4a & n.85; cf U.S.Br.16-17. In fact, the court ex-

pressly found that CD27 does “not diminish Hispanic

voter opportunity for § 2 effects purposes” because “no

additional compact Latino opportunity district could be

drawn” in the region—a finding plaintiffs do not chal-

lenge. C.J.S. App. 113a; see C.Br.51. That should be the

end of the matter, as a vote-dilution claim cannot survive

without proof of vote dilution. See swpra Part III.A.1.

Plaintiffs nonetheless argue that their §2 rights were vi-

olated because certain Hispanic voters in CD27 could

have been included in an existing majority-minority dis-

trict elsewhere (CD34, anchored in Cameron County).

But that is not a viable theory of vote dilution under §2

or the Constitution (or even a §5 retrogression problem,

as the D.C. district court rightly concluded, Texas v.

United States, 887 F. Supp. 2d 133, 153 (D.D.C. 2012),

vacated, 133 S. Ct. 2885 (2013) (mem.)).

At any rate, there was no intentional discrimination

in CD27 to begin with. The 2011 Legislature’s decision to

move Nueces County to a separate district from Cam-

eron County had nothing to do with Hispanic voters in

Nueces County or with Travis County or CD35. The de-

cision was instead made at the request of citizens and

legislators in both Nueces and Cameron Counties, Br.51-

52—and was made at the beginning of the 2011 redis-

tricting process, before the Legislature had even re-

ceived census data. Aug. 2014 Tr. 1761-62, 1772-73. Plain-

tiffs refuse to respond to that evidence, C.Br.45, and they

do not identify any contrary evidence, or even any sup-

posed “inconsistencies” in the record, C.Br.47. That is

because there simply is no evidence that the Legislature

acted, in 2011 or 2013, for the purpose of discriminating

against Hispanic citizens in Nueces County.

Purporting to rely on Feeney, 442 U.S. at 279, plain-

tiffs argue that discriminatory purpose can be inferred

from the Legislature’s mere knowledge that its redis-

tricting would have “adverse consequences ... on an

identifiable group—here, minority voters.” C.Br.47 n.25.

As an initial matter, there were no unlawful adverse con-

sequences because there was no vote dilution. Regard-

less, that radical argument conflicts directly with

Feeney, which admonished that “[d]iscriminatory pur-

pose’ ... implies more than intent as volition or intent as

awareness of consequences.” Feeney, 442 U.S. at 279.

This is especially true in the redistricting context, where

“the legislature always is aware of race.” Bethune-Hill

v. Va. State Bd. of Elections, 137 S. Ct. 788, 797 (2017)

(quoting Shaw, 509 U.S. at 646). Thus, this Court cited

Feeney when it made clear that partisan redistricting

does not become racial gerrymandering “even if it so

happens that the most loyal Democrats happen to be [mi-

norities] and even if the State were conscious of that

fact.” Hunt v. Cromartie, 526 U.S. at 551.

With no other leg to stand on, plaintiffs contend that

this case “obvious|ly] parallels” LULAC, asserting that

the 2011 Legislature impermissibly “engineered a trade

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

a §2 remedy to those who do not.” C.Br.51-52. This the-

ory has no basis in evidence. The State has never argued

that CD35 “offset” CD27. Cf LULAC, 548 U.S. at 429.

Regardless, the Legislature could not “take” §2 rights

from Hispanic voters in Nueces County because those

voters do not have a VRA §2 right to be placed in a ma-

jority-minority district, as it is impossible to draw an-

other majority-minority district in the area. See C.J.S.

App. 114a, 127a-13la, 421la. That readily distinguishes

this case from LULAC, where the State could have

drawn another majority-minority district in the relevant

area, but opted not to do so. LULAC, 548 U.S. at 429.

Accordingly, the fact that CD35 is a majority-minority

district is simply irrelevant to plaintiffs’ unfounded chal-

lenge to CD27.

3. There was no discriminatory intent or effect

in Bell County state-house districts.

Plaintiffs understandably have very little to say

about the district court’s incoherent conclusion regard-

ing Bell County state-house districts. The district court

correctly found no §2 results violation because it is un-

disputed that a “majority-minority CVAP” district can-

not be drawn in Bell Wounty. H.J.S. App. 18a, 180a. And

it correctly found that the 2011 Legislature’s “failure to

create the proposed [coalition] districts was not inten-

tional vote dilution.” H.J.S. App. 18a.

Despite these findings, the district court perplexingly

found “intentional discrimination/vote dilution.” H.J.S.

App. 22a. It purported to base that finding on “evidence

that mapdrawers ... intentionally racially gerryman-

dered the district.” H.J.S. App. 18a. But no plaintiff even

asserted a racial-gerrymandering claim in Bell County,

H.J.S. App. 192a-193a—and with good reason, as there

is no evidence that race predominated in the creation of

Bell County state-house districts. Having rejected

claims of intentional vote dilution and vote-dilution ef-

fect, and having recognized that plaintiffs did not bring

racial-gerrymandering claims, the district court had no

basis to find any violation in Bell County.

4. There was no discriminatory intent or effect

in Dallas County state-house districts.

Plaintiffs do not dispute plaintiff MALC’s expert’s

concession that it was not possible to create additional

districts in Dallas County with an African-American or

Hispanic citizen-voting-age-population majority.’ Nor do

they dispute that the 2011 Legislature designed HD105

to pair two Republican incumbents. The district court

correctly rejected plaintiffs’ claims that the 2011 Legis-

lature engaged in vote dilution by failing to create coali-

tion districts. H.J.S. App. 26a. And plaintiffs did not

bring racial-gerrymandering claims in Dallas County.

H.J.S. App. 192a-193a. The district court thus had no ba-

sis to hold that the 2011 Legislature, let alone the 2013

Legislature, engaged in either intentional vote dilution

or racial gerrymandering.

* Plaintiffs’ claim that under the 2011 plan, “Anglos controlled

nearly 60% of Dallas County’s house seats with only one-third

of its population,” H.Br.12, is misleading because it relies on

total population rather than voting-eligible population. The

district court recognized that of approximately 900,000 His-

panic residents of Dallas County, “only 256,195 were Hispanic

citizens of voting age.” H.J.S. App. 169a. Vote-dilution claims

require examination of voting-eligible population. See, e.g.,

LULAC, 548 U.S. at 429.

5. There was no discriminatory intent or effect

in Nueces County state-house districts.

Nueces County’s state-house plan is the only area

where the district court sustained a VRA §2 vote-dilution

results claim in addition to an intent claim. But neither

of those findings can withstand scrutiny, as plaintiffs do

not and cannot contend that the Legislature could have

drawn two performing majority-Hispaniec districts in

Nueces County." In fact, the district court expressly de-

clined to hold that VRA §2 required the Legislature to

draw two majority-minority districts in Nueces County.

H.J.S. App. 60a. That is fatal to plaintiffs’ claims.

Nevertheless, the district court found both vote-dilu-

tive intent and vote-dilutive effects on the basis that the

2011 Legislature failed to “explor{e] whether two

HCVAP-majority districts wholly within Nueces County

should be drawn.” H.J.S. App. 59a. But any additional

“exploration” would have been futile because two per-

formeng majority-Hispanic districts could not be drawn.

Plaintiff MALC’s own expert concluded that drawing

two Hispanic-CVAP-majority districts wholly within

Nueces County would result in “a lack of real electoral

opportunity in both districts.” H.J.S. App. 44a (emphasis

added). The Legislature’s choice to avoid that pitfall was

neither intentional nor actual vote dilution.

Plaintiffs do not challenge the district court’s holding that

VRA §2 did not require the State to break its whole-county

rule. See Br.66 (citing H.J.S. App. 49a-50a, 59a).

B. There Was No Racial Gerrymandering in CD35.

Plaintiffs do not deny that CD35 was drawn as one of

seven majority-Hispanic districts in the region, or that

the Legislature was required to draw seven such dis-

tricts in 2011."' Nor do plaintiffs argue that the Gingles

preconditions, including racial bloc voting, are not satis-

fied in CD35 as a whole. See U.S.Br.48. That should lay

to rest any doubts about whether the Legislature had the

requisite “good reasons” to make it a majority-minority

district.

Plaintiffs nonetheless claim (C.Br.38-39) that CD35

was a racial gerrymander because racial bloc voting does

not exist in Travis County—which comprises only a

small fraction of the population and area of CD35." See

U.S.Br.48. Plaintiffs fundamentally misunderstand the

Gingles inquiry. As this Court explained just last Term,

“(t]he ultimate object of the inquiry” is the “district as a

whole.” Bethune-Hill, 137 S. Ct. at 800. Indeed, it must

be, because the question under the third Gingles condi-

tion is whether “racially polarized voting prevents” a mi-

nority group from electing its candidate of choice.

Cooper, 1378. Ct. at 1470 (quoting Growe v. Emison, 507

U.S. 25, 40 (1993)).

Cooper v. Harris does not support plaintiffs’ argu-

ment (C.Br.43) that the absence of racial bloc voting in a

" The relevant region is South, Central, and West Texas.

C.J.8. App. 423a. Plaintiffs’ term “the envelope,” C.Br.4, was

concocted in litigation to establish a fictitious geographic

boundary.

® Travis County accounts for only 21% of CD35’s population.

C.J.5. App. 181a.

portion of a district defeats the third Gingles condition.

Cooper held that the State lacked good reasons to believe

that VRA §2 required it to add additional minority voters

to an existing district that consistently elected minority-

preferred candidates. 137 S. Ct. at 1465-66. Cooper did

not hold that VRA §2 cannot justify a new district, like

CD35, merely because racial bloc voting may not exist in

a portion too small to control outcomes in the district as

a whole.

Plaintiffs rely on Shaw v. Hunt, 517 U.S. 899, 916

(1996), to argue that the Legislature did not have license

to draw a majority-minority district “anywhere”—by

which they mean to draw a majority-minority district

that included Travis County. C.Br.42. But the Legisla-

ture could lawfully draw the district anywhere it had

good reason to believe all three Gingles factors were

met. Cf Shaw, 517 U.S. at 916 (racial classification did

not remedy VRA violation because district did not meet

first Gingles requirement). And that is exactly what the

Legislature did when it created CD35.

In all events, the VRA-compliance defense to a racial-

gerrymandering claim does not require a “perfect” VRA

analysis ahead of time. Cooper, 137 S. Ct. at 1464. Ra-

ther, so long as the Legislature had “good reason” to be-

lieve the district would remedy a potential VRA §2 prob-

lem (even if it turns out that the VRA did not actually

require the district), then the district is not a racial ger-

rymander. /d. at 1470. Here, plaintiffs counsel MAL-

DEF proposed CD35’s Austin-to-San-Antonio configu-

ration, C.J.S. App. 41la; and the Latino Task Force

plaintiffs supported CD35, C.J.S. App. 174a. These are

about the best reasons possible to believe that CD35 was

needed to satisfy VRA §2.

Plaintiffs’ real complaint is not that the Legislature

included part of Travis County in CD35, but that it elim-

inated an Anglo-majority crossover district previously

based in Travis County. But the district court did not

find a violation on this basis, Br.47 n.12, because it cor-

rectly recognized that §2 does not require the State to

preserve crossover districts. C.J.S. App. 409a (citing

Bartlett, 556 U.S. at 23). Plaintiffs racial-gerrymander-

ing claim is just another attempted end-run around Bart-

lett.

IV. There Was No Racial Gerrymandering In HD90.

Finally, the 2013 Legislature did not engage in racial

gerrymandering when it modified H D90 to accommodate

requests from two different groups of minority voters.

Plaintiffs do not dispute that HD90 was drawn as a ma-

jority-Hispanic district at plaintiffs’ request in 2011 and

retained by the district court in 2012. See H.J.S. Supp.

App. 258a-259a. They do not suggest that this configura-

tion was not required by VRA §2, nor do they attempt to

defend the district court's patently incorrect holding that

VRA compliance is just “a vague goal,” rather than a de-

fense to a racial-gerrymandering claim. And the only

other explanation the district court offered for its ruling

on HD90 is readily refuted by the undisputed evidence.

According to the district court, “no one considered the

legal significance of the 50% [Spanish-surname-voter-

registration] target in terms of compliance with the

VRA.” H.J.S. App. 82a. But the record shows that plain-

tiff MALC specifically objected to the initial draft

amendment to HD90 on the ground that reducing the

Spanish-surname-voter-registration population in HD90

below 50% would substantially dilute Hispanic voting

strength. J.A. 398a-403a."*

Plaintiffs do not dispute that this objection directly

motivated the incumbent's chief of staff—whose intent

the district court attributed to the Legislature—to con-

sider racial data to maintain HD90’s Spanish-surname-

voter-registration majority.‘ Instead, they blithely sug-

gest that the Legislature should have simply refused to

bring the Como neighborhood back into HD90. H.Br.54-

55 & n.15. But plaintiffs tellingly do not acknowledge

that Como is a predominantly African-American neigh-

borhood—they describe it as “non-Latino,” H.Br.564—or

that residents of Como specifically asked to return their

neighborhood to HD90, where it had been for decades.

H.J.S. App. 7la-72a. There was nothing unlawful about

returning Como to HD90 so long as the Legislature

maintained HD90 as a majority-Hispanic district.

Indeed, even though the Legislature made sure that

HD90 maintained a Hispanic voting majority, the State

still faced an intentional-vote-dilution claim in HD90.

And the district court rejected that claim only because

the Legislature retained HD90 as a majority-Hispanic

Plaintiffs cannot avoid that evidence based on “credibility

determinations.” H.Br.53. They identify no credibility deter-

mination related to HD90, and none appears in the district

court’s order.

“ Plaintiffs fault the Legislature for failing to compile a de-

tailed administrative record in HD90, H.Br.54, but that is not

required, see Bush v. Vera, 517 U.S. 952, 966 (1996) (plurality

op.); accord id. at 1026 (Stevens, J., dissenting), and it does

not change the undisputed facts.

district. H.J.S. App. 83a-84a. If that does not qualify as

“good reason” to retain a majority-Hispanic district,

Cooper, 137 S. Ct. at 1470, then States have no breathing

room left to satisfy both the Constitution and the VRA.

CONCLUSION

The Court should reverse the district court’s orders

insofar as they invalidate districts in Plan C235 and Plan

H358.

Respectfully submitted.

PAUL D. CLEMENT

ERIN E. MURPHY

KIRKLAND & ELLIS LLP

655 Fifteenth Street, N.W.

Washington, D.C. 20005

APRIL 2018

KEN PAXTON

Attorney Genera! of Texas

JEFFREY C. MATEER

First Assistant

Attorney General