# Reply Brief — Abbott v. Perez, 138 S. Ct. 735 (2018) (No. 17-586) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0792%3A12 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 2018 ## Text Nos. 17-586, 17-626 In the Supreme Court of the Cnited States GREG ABBOTT, ET AL., APPELLANTS, v. 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) i 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 Il 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 IV 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) 2 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 3 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 4 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 5 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). 6 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. 7 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. 8 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 9 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. 10 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- 11 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. 12 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. 13 §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 14 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 15 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. 16 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. 17 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 18 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 19 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. 20 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). 21 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. 22 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. 23 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. 24 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 25 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 26 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 27 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. 28 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). 29 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. 30 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 31 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 32 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. 33 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 Scott A. KELLER Solicitor General Counsel of Record MATTHEW H. FREDFRICK 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0792%3A12. Public record. Not legal advice.