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

Nos. 17-586 and 17-626

In the Supreme Court of the United States

GREG ABBOTT, GOVERNOR OF TEXAS, ET AL., APPELLANTS

v.

SHANNON PEREZ, ET AL.

ON APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

REPLY BRIEF FOR THE UNITED STATES

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@ usdoj. gov

(202) 514-2217

TABLE OF CONTENTS

Page

I. This Court may exercise jurisdiction over these

SIO cosscsnccessserensesensnennstnosansesntennmanemmmessmnapaasnsnansianies 2

Il. Plaintiffs have failed to establish that the 2013

reo engaged in intentional vote dilution........ 7

. Plaintiffs bear the heavy burden of proving

that the 2013 Legislature acted with a

discriminatory racial purpose in permanently

adopting the 2012 court-ordered interim plans....7

B. Plaintiffs have not identified facts sufficient to

rebut the presumption of good faith.............0000 15

III. Congressional District 35 is not an

unconstitutional racial gerrymande’ .............:000000000 19

TABLE OF AUTHORITIES

Cases:

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

SES SCR, Fa Ge cersitenctneectiinnntecinniimnnns 2, 20

Bose Corp. v. Consumers Union of U.S., Inc.,

GB TE, Ga Go cesnsesnastccncnnniscnnintcinusisiattntinnncciscisehineninis 16

Carson v. American Brands, Inc., 450 U.S. 79

CED cccccrninsinsicscsictnsisinsissiuncientinticagisisindimiiinanteiiieseniiiie 3, 4, 6

Chavis v. Whitcomb, 307 F’. Supp. 1362 (S.D. Ind.

1969), stay granted, 396 U.S. 1055, probable

jurisdiction noted, 397 U.S. 984 (1970) ......cccsssvseeereerneenees 6

City of Mobile v. Bolden, 446 U.S. 55 (1980) ......cccccsserseees 18

Cooper v. Harris, 137 S. Ct. 1455 (2017) .......cccceeeee 6, 16, 19

Goldstein v. Cox, 396 U.S. 471 (1970) ...cccccsesecsserersesenenenens 4,5

Green v. County Sch. Bd., 391 U.S. 430 (1968) ......:cccccceee 14

Gidfstream Aerospace Corp. v. Mayacamas Corp.,

GB WE, BEE Ca pccevernnccnsccnsssnessissensnsineseisnsnscnssinenansinnesenn 5

Gunn v. University Comm. To End The War In

Viet Nam, 399 U.S. 383 (1970)........scscssessessosersssecseeessnsees 4,5

(I)

Il

Cases—Continued: Page

Hunt v. Cromartie, 526 U.S. 541 (1999) .0......ccccccccceeccneeneees 7

Hunter v. Underwood, 471 U.S. 12, 13

Johnson v. Governor, 405 F.3d 1214 (11th Cir.),

cert. denied, 546 U.S. 1015 (2005) ..........ccccccccccccccceeeeneeees 13

Keyes v. School Dist. No. 1, 413 U.S. 189 (1973) ................ 14

Lorillard v. Pons, 434 U.S. 575 (1978) ........cccccccceesceceeeeeeeeee 13

Perry v. Perez, 565 U.S. 388 (2012) ......cccccccccecseeeererenres 10, 11

Reno v. Bossier Parish Sch. Bd., 520 U.S. 471

EE a 8,14

Schaffer v. Weast, 546 U.S. 49 (2005) ..........cccccccccecereerenennens 13

Schmidt v. Lessard, 414 U.S. 473 (1974) ......ccccccccccesseceeeeeneees 5

Shaw v. Hunt, 517 U.S. 899 (1996) .........ccccceceeereseseennneneee 21

Siaty-Seventh Minn. State Senate v. Beens,

Be TT coiirincceeesiteneertitinicinsendecenntienstenaeneminecmeamnne 6

Stovall v. City of Cocoa, 117 F.3d 1238

GE GL, Bie censtcrenntnessencnsssnnsncsnesssnnnescnsennenammnsncssensensnensess 6

Switzerland Cheese Ass'n v. E. Horne’s Mit, Inc.,

a IED ccrenscssenisscccanssensecsnssmunssnecenseneesensenvesstssemeense 4

Texas v. United States, 887 F . Supp. 2d 133

(D.D.C, 2012), vacated and remanded,

EE 21

Thornburg v. Gingles, 478 U.S. 30 (1986) ........cccccccceeeeeeee 20

United States v. Fordice, 505 U.S. 717 (1992) ..........cc0000 14

University of Tex. v. Camenisch, 451 U.S. 390 (1981) ...... 10

Village of Arlington Heights v. Metropolitan Hous.

Dev. Corp., 429 U.S. 252 (1977) ........0.cescereeseresrsessssneeesenensnes 8

Whitcomb v. Chavis:

I nai ciceicmartaitiaee 6

a 6

ia ia aeenisieiceetiiiatiniaian 6

Wise v. Lipscomb, 437 U.S. 535 (1978) ........cccccceeeeeeeeneeees 14

Ill

Constitution, statutes, and rule: Page

U.S. Const.:

Amend. XIV aunsnntenimanenanes 10, 11

Equal Protection Clause 19

Voting Rights Act of 1965, 52 U.S.C. 10801 et seg.

(Supp. ITI 2015):

52 U.S.C. 10801 (§ 2) .2, 10, 11, 19, 20, 21

52 U.S.C. 10804 (§ 5) 11, 12

28 U.S.C. 1258 2,4,5

28 U.S.C. 1292(a)(1) - 3, 4,5

BB UBC. BBB a) an nnnnnn ann nnnennncneneceensnsenenesscessnsnrensnserenencenensons 2,4

42 U.S.C. 1973e(a) (2012) 11

Fred. BR. Civ. P. G60@) .2.2.2ececcscesccerersecereevocsecenvee 5

In the Supreme Court of the United States

Nos. 17-586 and 17-626

GREG ABBOTT, GOVERNOR OF TEXAS, ET AL., APPELLANTS

Vv.

SHANNON PEREZ, ET AL.

ON APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

REPLY BRIEF FOR THE UNITED STATES

Plaintiffs do not meaningfully dispute that the district

court’s analysis of the intentional-vote-dilution claims

rested on erroneous legal premises. Instead of asking

whether plaintiffs had proven that the 2013 Legislature

enacted the 2013 plans for the purpose of harming minor-

ity voters, the court presumed that discriminatory mo-

tives of a prior legislature would “carry over” to invalidate

future legislative action—the substance of which that

same court had already provisionally approved—unless

the State established it had affirmatively “removed” the

“taint” of prior discrimination. C.J.S. App. 46a. As our

opening brief explains, that notion of persistent discrimi-

natory intent is directly contrary to the strong presump-

tion of good faith that should apply when a State adopts

remedial plans that a court has reviewed and, after adver-

sarial testing, provisionally found to be lawful.

The district court’s treatment of Congressional! Dis-

trict 35 (CD35) similarly rested on flawed legal prem-

(1)

2

ises. Because racial-gerrymandering claims are ad-

dressed “holistic|ally]” at the “district” level, Bethwne-

Hill v. Virginia State Bd. of Elections, 137 S. Ct. 788,

800 (2017), the absence of racially polarized voting in

Travis County—part of which constitutes, in turn, part

of CD35—does not demonstrate that the 2013 Legisla-

ture lacked a sound basis to conclude that CD35 satis-

fied Section 2 of the Voting Rights Act (VRA). On the

contrary, the court’s own 2012 decision provisionally re-

jecting plaintiffs’ claims was itself sufficient to give the

State “good reasons” to believe in 2013 that CD35 was

lawful. Jd. at 795. Plaintiffs’ arguments do not show

otherwise.

I. THIS COURT MAY EXERCISE JURISDICTION OVER

THESE APPEALS

A. Under 28 U.S.C. 1253, this Court possesses appel-

late jurisdiction over orders granting or denying inter-

locutory or permanent injunctions in three-judge district

court actions brought under 28 U.S.C. 2284(a). As previ-

ously explained (U.S. Br. 20-23),' the district court’s Au-

gust 15 and August 24, 2017 orders are properly under-

stood to have enjoined future use of the State’s 2013 con-

gressional and State House plans and are therefore

appealable.

' “U.S. Br.” refers to the United States’ opening brief; “Texas

Br.” refers to Appellants’ opening brief; “Cong. Br.” refers to plain-

tiffs’ response brief in No. 17-586; and “House Br.” refers to plain-

tiffs’ response brief in No. 17-626. See U.S. Br. 1 n.1 (explaining

other abbreviations).

3

As noted by plaintiffs (Cong. Br. 26), the district court

did not expressly style its orders as injunctions.’ But that

consideration is not dispositive. As this Court held in in-

terpreting 28 U.S.C. 1292(a)(1)—an analogous statute al-

lowing for immediate appellate review of injunctions—

even an order not styled as the grant or denial of an in-

junction is nonetheless appealable if the order has the

“practical effect” of granting or denying injunctive relief;

“might have a ‘serious, perhaps irreparable, conse-

quence’”; and “can be ‘effectually challenged’ only by

immediate appeal.” Carson v. American Brands, Inc.,

450 U.S. 79, 84 (1981) (citation omitted).

The district court’s orders meet those standards. See

U.S. Br. 20-23. The court found that the 2013 congres-

sional and State House plans contained “statutory and

constitutional violations” that “must be remedied by ei-

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

118a; H.J.S. App. 84a-85a (similar). The court then gave

the Governor only three days to decide whether to call

the Legislature into special session to enact new redis-

tricting plans, or instead leave the drawing of new maps

to the court in highly expedited proceedings. Those rul-

ings left little doubt that Texas would be forbidden from

using its 2013 plans for the 2018 elections. Had the State

been required to wait until the court entered an express

injunction, that order would likely have come too late for

* Several plaintiffs had requested immediate injunctive relief.

See, e.g., D. Ct. Doe. 1525, at 42 (July 31, 2017) (plaintiff MALC)

(“(Tjhe plans containing these defects must be enjoined and their

defects must be remedied.”); D. Ct. Doe. 1527-1, at 2 (July 31, 2017)

(Quesada plaintiffs) (“The Court should enter judgment perma-

nently enjoining further use of Plan C235.”); D. Ct. Doe. 1529-1, at 1

(July 31, 2017) (NAACP plaintiff-intervenors) (“If [the court] finds

that such unconstitutional intent existed, it must enter an immedi-

ate and permanent injunction.”).

4

appellate review before deadlines associated with the

2018 election cycle. Under these unusual circumstances,

a State whose existing legislative apportionment plans

are invalidated in litigation under 28 U.S.C. 2284(a), and

whose Governor is given such an ultimatum concerning

the State’s legislative process, need not await entry of an

express injunction before obtaining appellate review of

the district court’s order.

B. 1. Plaintiffs fail to explain why the district court’s

orders do not satisfy Carson’s elements. They instead ar-

gue (Cong. Br. 26; House Br. 30) that Carson is inapposite

to Section 1253. But Section 1253 contains language ma-

terially similar to that of Section 1292(a)(1), and plaintiffs

offer no sound reason why the two statutes should not be

interpreted consistently. Compare 28 U.S.C. 1253 (allow-

ing “appeal * * * from an order granting or denying * * *

an interlocutory or permanent injunction”), with 28 U.S.C.

1292(a)(1) (allowing “appeal{| from * * * [i)nterlocutory

orders *** granting, *** refusing or dissolving

injunctions”).

In opposing Carson’s application, plaintiffs urge that

Section 1253 “is to be narrowly construed.” House Br. 29

(quoting Goldstein v. Cox, 396 U.S. 471, 478 (1970)). But

Carson said the same about Section 1292(a)(1). See Car-

son, 450 U.S. at 84 (“Because § 1292(a)(1) was intended to

carve out only a limited exception to the final-judgment

rule, we have construed the statute narrowly.”); ef. Swit-

zerland Cheese Ass’n v. E. Horne’s Mkt., Inc., 385 U.S. 23,

24 (1966) (similar). And plaintiffs’ assertion (House Br.

30) that this Court “squarely refused to create a ‘practi-

cal effect’ exception” in Gunn v. University Committee

To End The War In Viet Nam, 399 U.S. 383 (1970) and

Goldstein v. Cox, supra, overlooks that those decisions

5

predated Carson and that in neither did the Court dis-

cuss and reject a practical-effect test.*

Plaintiffs also suggest (Cong. Br. 27) that the Carson

framework should apply only when an injunction is effec-

tively denied, and not when one is effectively granted. But

this Court has stated that Section 1292(a)(1) “provides |

appellate jurisdiction over orders that * * * have the

practical effect of granting or denying injunctions and

have ‘serious, perhaps irreparable, consequence.’” Gulf-

stream Aerospace Corp. v. Mayacamas Corp., 485 U.S.

271, 287-288 (1988) (emphasis added; citation omitted).

An order granting an injunction is, of course, subject

to procedural requirements under Federal Rule of Civil

Procedure 65(d) that do not apply to denials of injunc-

tions. See Gunn, 399 U.S. at 388. But this Court has

recognized that an order may amount to an injunction

under 28 U.S.C. 1253 even if it fails to comply with the

Federal Rules of Civil Procedure. See Schmidt v. Les-

sard, 414 U.S. 473, 477 (1974) (per curiam). Moreover,

whatever the precise contours of the “remedy” the dis-

trict court might ultimately have entered (Cong. Br. 27),

it was clear from the court’s orders that the State’s ex-

isting maps could not be used. And this Court has re-

viewed injunctions barring use of existing apportion-

ment plans even though replacement plans had not yet

* In Goldstein, the plaintiffs sought to appeal the district court’s

denial of their summary-judgment motion. Although their com-

plaint had “prayed |] for preliminary as well as permanent injunctive

relief,” the plaintiffs had “t{/aken] no practical step toward obtaining

such relief,” and the court’s order thus did not constitute the denial

of an injunction. 396 U.S. at 478-479. In Gunn, the defendants

sought to appeal an interlocutory order concluding that a state stat-

ute was unconstitutional. But the defendants there acknowledged

that the order was “no more than ‘an advisory opinion’” inasmuch

as no injunction had yet been entered. 399 U.S. at 389.

6

been drawn. See, e.g., Cooper v. Harris, 137 8. Ct. 1455

(2017); Siaty-Seventh Minn. State Senate v. Beens,

406 U.S. 187, 190-191, 194-195 (1972) (per curiam).

Plaintiffs fault the United States (House Br. 32) for

failing to distill the Carson framework to a simpler rule

that would better “guide future litigants” in assessing ap-

pealability. But Carson requires consideration of whether

the order will have a “‘serious, perhaps irreparable, con-

sequence’” and whether it “can be ‘effectually challenged’

only by immediate appeal.” 450 U.S. at 84 (citation omit-

ted). Those determinations require case-specific analy-

sis, including consideration of real-world deadlines or

other exigencies confronting the appellant. See, ¢.g.,

Stovall v. City of Cocoa, 117 F.3d 1238, 1241 (11th Cir.

1997) (court’s effective denial of injunction was immedi-

ately appealable because “trial in the district court [may

not] conclude in time to affect the next election”).

2. Plaintiffs also err in suggesting (House Br. 32 &

n.12) that the circumstances here are “nearly identical”

to those of Whitcomb v. Chavis, 403 U.S. 124 (1971). In

Whitcomb, the plaintiffs filed suit in January 1969; the

district court issued its liability determination in late

July 1969; and that court “ga[ve] the State until October 1,

1969” —several months later—‘“to enact legislation rem-

edying” the violations. /d. at 131, 137-138. When the leg-

islature opted not to act, the court entered its injunctive

orders in December 1969. See id. at 139; 307 F. Supp.

1362 (S.D. Ind. 1969); see also 396 U.S. 1055 (1970)

(granting stay); 397 U.S. 984 (1970) (noting probable

jurisdiction).

The chronology here was very different. Although

plaintiffs promptly brought their relevant claims in

2013, the district court declined to adjudicate them im-

mediately. It instead allowed the 2013 plans to be used—

7

over plaintiffs’ repeated objections—for both the 2014

and 2016 elections. And in August 2017, when the court

ultimately found the 2013 plans to be invalid, it gave the

Governor just three days to decide whether to pursue en-

actment of a legislative plan. C.J.S. App. 118a; H.J.S.

App. 86a. It simultaneously scheduled judicial remedial!

hearings for September 5 and 6, 2017—mere weeks be-

fore the State’s October 1, 2017 deadline for finalizing

districts for the 2018 election cycle, and likely too close

to that deadline to afford adequate time for appellate

review. Ibid.‘

Il. PLAINTIFFS HAVE FAILED TO ESTABLISH THAT

THE 2013 LEGISLATURE ENGAGED IN INTENTIONAL

VOTE DILUTION

A. Plaintiffs Bear The Heavy Burden Of Proving That The

2013 Legislature Acted With A Discriminatory Racial

Purpose In Permanently Adopting The 2012 Court-

Ordered Interim Plans

1. As explained in our opening brief (at 24-29), a leg-

islative redistricting plan may be invalidated on grounds

of intentional vote dilution only if a plaintiff shows that

the legislature adopted that plan for a discriminatory

purpose. In analyzing such a claim, a court must accord

a “presumption of good faith [to] legislative enactments,”

Hunt v. Cromartie, 526 U.S. 541, 553 (1999) (citation

* Both plaintiffs and the district court acknowledged the signifi-

cance of the October 1, 2017 deadline for the timing of further liti-

gation. See, ¢.g., D. Ct. Doe. 1389, at 1 (May 1, 2017) (“The Court is

aware of the condensed schedule that must be implemented in light

of the 2018 election deadlines.”); D. Ct. Doe. 1372, at 3 (Apr. 24,

2017) (NAACP plaintiffs) (requesting expeditious resolution be-

cause “[t}he first steps in the 2018 election process begin early this

fall”); D. Ct. Doe. 1375, at 2 (Apr. 24, 2017) (African-American Con-

gressperson plaintiffs) (similar).

8

omitted), and the burden of proof rests on the plaintiff,

see Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 481

(1997). Moreover, although an enactment’s “impact” and

“historical background” are both relevant, Village of

Arlington Heights v. Metropolitan Hous. Dev. Corp.,

429 U.S. 252, 266-267 (1977), courts must not infer dis-

criminatory intent solely from disparate effects, see U.S.

Br. 27-28, and a finding of past intentional discrimination

alone ordinarily cannot sustain an inference of present

discrimination, see id. at 28.

As also explained (U.S. Br. 29-31), this Court’s cases

suggest the further principle that a court should afford

particular weight in the discriminatory-purpose assess-

ment to a state legislature’s enactment undertaken in re-

liance on a court-ordered remedial plan. When a court

has found in a reasoned decision that a court-ordered in-

terim redistricting plan redresses all likely violations of

law, and when the legislature permanently adopts that

plan to replace its original enactment, the normal pre-

sumption of good faith accorded to legislative enact-

ments is heightened by the State’s acceptance of the ju-

dicially approved plan. It is appropriate for plaintiffs to

bear a heavy burden in establishing that a state legisla-

ture’s adoption of a court-ordered plan was intention-

ally discriminatory.

2. Plaintiffs’ response briefs do not dispute that the

district court’s legal analysis was inconsistent with the

foregoing principles. Plaintiffs instead argue (House

Br. 35-40; Cong. Br. 27-34) that those principles should

not be applied in this particular case. Those arguments

are unpersuasive.

Plaintiffs’ chief submission is that the principles set

forth in our opening brief are irrelevant because this

case does not involve a “court-drawn” or “judicial[ly|”

9

created plan. House Br. 1, 19, 27, 39-40; see Cong. Br.

1, 24. Plaintiffs emphasize that most districts at issue

here were first drawn in the State’s 2011 legislative plans,

not in the 2012 interim plans.° But our argument rests on

the fact that the interim plans were “judicially approved”

and “court-ordered” (U.S. Br. 18, 30), not on the mistaken

understanding that the districts were “court-drawn” in

the first instance. What matters is that the court evalu-

ated the particular plans at issue; provisionally found

them to be lawful; and ordered their use for future elec-

tions. Once a court has made such determinations, it is

appropriate to presume that a state legislature acts in

good faith if it then adopts the judicially approved dis-

tricts in permanent redistricting plans.

Plaintiffs also emphasize (House Br. 37-39; Cong. Br.

1-2, 32-33) that the district court’s approval of the 2012

interim plans was “provisional” and not a final determi-

nation of whether they sufficiently redressed asserted

constitutional and VRA violations in the Legislature’s

2011 plans. As already explained (U.S. Br. 38-39, 42-43),

however, that does not preclude application of a strong

presumption of good faith to the Legislature’s subse-

quent incorporation of the court-ordered districts in its

enactment of the 2013 plans. A state legislature could

quite reasonably conclude that a federal court’s ap-

proval of an interim map provides, at a minimum, highly

probative evidence that the map complies with federal

law. Indeed, here, the court itself believed that its in-

terim determinations were sufficiently reliable to jus-

tify use of the at-issue districts not only for the 2012

elections, but for the 2014 and 2016 elections as well.

See U.S. Br. 10-13.

* As plaintiffs note, State House District 103 was adjusted in

immaterial respects in 2013. See House Br. 2.

10

To recognize the force of the 2012 interim decisions

is not, as plaintiffs suggest, to grant the State a “safe

harbor” from further liability. House Br. 37. The dis-

trict court’s provisional approval of particular aspects

of the 2011 plans did not preclude the court from ulti-

mately reaching a contrary final determination regard-

ing the 2011 plans. See University of Tex. v. Came-

nisch, 451 U.S. 390, 395 (1981) (rulings at preliminary-

injunction stage “are not binding at trial on the merits”).

In these appeals, however, the question is not whether

the legislative plans adopted in 2011 would ultimately

have been found lawful, or whether the court’s 2012 in-

terim plans would ultimately have been found sufficient

to redress any violations in the 2011 plans, but rather

whether the revised plans enacted by the Legislature in

2013 were lawful. And as relevant to plaintiffs’ intentional-

vote-dilution claims, the question is whether the Legisla-

ture acted with a discriminatory purpose in enacting

those 2013 plans. That question must be resolved by

looking to the intent of the 2013 Legislature—an issue

that could not have been adjudicated in 2012.

Plaintiffs’ argument also overlooks that the 2012 in-

terim plans were the product of the unique analytical

framework mandated by Perry v. Perez, 565 U.S. 388

(2012) (per curiam). In Perry, this Court invalidated the

district court’s prior remedial plans, which had rested on

that court’s “own concept of the ‘collective public good,’”

and ordered the court to devise new interim plans for the

2012 elections that paid appropriate heed to the State’s

policy goals. Jd. at 396. The Court ordered that, as to

those districts in the 2011 plans challenged under Sec-

tion 2 of the VRA or the Fourteenth Amendment, the dis-

trict court should retain those districts in its interim

1]

plans unless plaintiffs satisfied the “likelihood of suc-

cess” preliminary-injunction standard. /d. at 394. As to

challenges asserted under Section 5 of the VRA in the

separately pending preclearance litigation, however, the

Court established a “different,” more plaintiff-friendly,

standard. /bid. As to those claims, the Court instructed

the district court to “tak[e] guidance from [the] State’s

policy judgments” only to the extent that the State’s dis-

tricts “(did not] stand a reasonable probability of failing

to gain § 5 preclearance.” /d. at 395. If a “not insubstan-

tial” claim existed that a challenged district “‘{Jeither

ha[d| the purpose [jor *** the effect of denying or

abridging the right to vote on account of race or color,’”

the court was required to reject that district rather than

incorporate it into the interim plan. /d. at 391 (quoting

42 U.S.C. 1978e(a) (2012)), 395.

The district court faithfully applied those standards

on remand, It concluded that plaintiffs had not estab-

lished a likelihood of success on their claims that CD27

and CD35 violated Section 2 of the VRA or the Four-

teenth Amendment. C.J.S. App. 408a-415a, 417a-423a.

The court further ruled that various congressional and

State House districts from the 2011 plans would not be

included in the interim 2012 plans because plaintiffs had

met the “low ‘not insubstantial’ standard” applicable to

Section 5 challenges. H.J.S. App. 313a; see id. at 305a,

307a, 312a, 313a; C.J.S. App. 397a-408a. The court ex-

plained with respect to the congressional plan that it had

“reviewed the post-trial briefing” from the preclearance

litigation, C.J.8. App. 380a, and concluded that the in-

terim plans sufficiently “resolve|d] the ‘not insubstantial’

§ 5 claims,” id. at 396a. And with respect to the State

House plan, the court stated that “[t]o the extent that le-

gal challenges are levied against any of th{e] [unchanged

12

State House] districts, we preliminarily find that * * *

any Section 5 challenges are insubstantial.” H.J.S. App.

308a.° The 2013 Legislature was aware that the district

court in 2012 had applied the framework established by

this Court’s Perry decision, see, e.g., Texas Br. 35a (legis-

lative findings), and the court’s announcement that it had

made all necessary changes to satisfy that framework fur-

ther underscores the presumptive reasonableness of the

Legislature’s decision to rely on the court’s orders in en-

acting permanent redistricting plans.

3. Plaintiffs’ remaining arguments rest on inapt legal

principles. Like the district court (C.J.S. App. 34a-39a),

plaintiffs place heavy reliance on Hunter v. Underwood,

471 U.S. 222, 223 (1985), in which this Court invalidated

an extant provision of the 1901 Alabama Constitution be-

cause it had been adopted for the purpose of disenfran-

chising black voters. Cf. Cong. Br. 30 (asserting Hunter

to be “indistinguishable”); House Br. 44-45 (similar). But

as already explained (U.S. Br. 33-34), Hunter did not in-

volve a subsequent legislative enactment, and the Court

° Among the areas discussed in post-trial briefing in the preclear-

ance litigation were Nueces County (containing CD27, HD32, and

HD34); Bell County (containing HD54 and HD55); and Dallas County

(containing HD103, HD104, and HD105). See, eg., 11-cv-1303

Docket entry (Docket entry) No. 207, at 5, 20-22 (Feb. 7, 2012) (chal-

lenging CD27 as retrogressive); Docket entry No. 206, at 4-5 (Feb.

17, 2012) (asserting that elimination of HD33 from Nueces County

was evidence of intentional discrimination); Docket entry No. 198,

at 20-21 (Feb. 6, 2012) (asserting that Legislature's decision to “split

the city [of Killeen] between [House] Districts 54 and 55” was “mo-

tivated by intent to discriminate against” the “growing minority

population”); Docket entry No. 195, at 6-7 (Feb. 6, 2012) (asserting

that the “extremely contorted district boundaries” of, inter alia,

HD103, HD104, and HD1065 reflected State’s effort to “cancel out

[the] minority’s ability to elect”).

13

contemplated that the challenged constitutional provi-

sion might have been valid “if enacted today without any

impermissible motivation.” 471 U.S. at 233. That is be-

cause the determination whether a particular enactment

was intentionally discriminatory ultimately turns on the

intent of the enacting legislature, not that of prior legis-

latures.

Plaintiffs evidence a similar misunderstanding in

urging that “repeal and reenactment” of a statute ordi-

narily does not change a statute’s meaning or interrupt

its effectiveness. House Br. 40; see Cong. Br. 29, 31

n.17. Here, the question is not how to interpret the

“substantive provisions” of the 2013 plans (Cong. Br.

29), but whether the Legislature enacted those plans for

the purpose of harming minority voters. Although the

meaning of a statute’s text is ordinarily presumed to re-

main consistent when reenacted “without change,” Lo-

rillard v. Pons, 434 U.S. 575, 580 (1978), the law recog-

nizes no similar presumption or canon that the subjec-

tive intent of a prior legislature “remains legally opera-

tive” until some affirmative contrary showing is made,

Johnson v. Governor, 405 F.3d 1214, 1223 (11th Cir.) (en

banc), cert. denied, 546 U.S. 1015 (2005).

Plaintiffs and their amici also err in relying on the

unique remedial principles governing desegregation of

public schools. See House Br. 46-47; Common Cause

Amicus Br. 28-29; Campaign Legal Ctr. Amicus Br. 4-5,

17-18. In most contexts, the burden of proof rests on

the party alleging a violation of federal law. Schaffer v.

Weast, 546 U.S. 49, 56 (2005); see U.S. Br. 26. In “the

special context of school desegregation cases,” however,

this Court concluded that “‘fairness’ and ‘policy’ require

state authorities to bear the burden of explaining ac-

14

tions or conditions which appear to be racially moti-

vated.” Keyes v. School Dist. No. 1, 413 U.S. 189, 208-

209 (1973). That atypical “allocation of the burden of

proof,” id. at 209, reflects this Court’s earlier judgment

that school districts are “charged with [an] affirmative

duty to take whatever steps might be necessary to con-

vert to a unitary system in which racial discrimination

would be eliminated root and branch,” Green v. County

Sch. Bd., 391 U.S. 430, 437-438 (1968) (emphasis added);

see United States v. Fordice, 505 U.S. 717, 731 (1992)

(State bore “burden of proving that it has dismantled its

prior system.”). This Court has never suggested that

the special remedial framework it developed for deseg-

regation cases should apply to legislative redistricting.

To the contrary, the Court has recognized that the

plaintiff bears the burden of proving intentional dis-

crimination in voting cases, see Bossier Parish,

520 U.S. at 481, and that burden remains on the plaintiff

in litigation challenging a State’s legislative adoption of

a remedial plan in response to a prior judicial order, see,

e.g., Wise v. Lipscomb, 437 U.S. 535, 540 (1978) (princi-

pal opinion); U.S. Br. 28-29 (citing other authorities).

Finally, plaintiffs are wrong to suggest (Cong. Br. 28)

that the district court’s approach is necessary to ensure

that legislatures do not engage in opportunistic behavior.

The strong presumption of good faith advocated by the

United States applies when a state legislature enacts a

plan ordered by a district court after determining that it

satisfies (or likely satisfies) constitutional and statutory

requirements, not any time that a legislature “reen-

act(s]” a statute. /bid. Moreover, our approach does not

dictate a result as a matter of law. If a plaintiff shows

that a legislature permanently adopted a judicially ap-

proved plan not because it legitimately believed that plan

15

to be lawful, but rather because it sought to preserve dis-

crimination that somehow escaped judicial invalidation,

a plaintiff can succeed in establishing its claim of inten-

tional vote dilution. See U.S. Br. 30-31. A court is not

required to “take at face value” (Cong. Br. 2) a State’s

assertion that its reenacted plan is lawful. But plaintiffs

bear a heavy burden in establishing that a state legisla-

ture’s adoption of a court-ordered plan was intentionally

discriminatory.

B. Plaintiffs Have Not Identified Facts Sufficient To

Rebut The Presumption Of Good Faith

As previously explained (U.S. Br. 31-37), it was only by

relying on the flawed assumption that discriminatory in-

tent “carr{ies] over” from one plan to the next, C.J.S. App.

46a, unless and until a State proves it has “cured [the]

taint,” id. at 40a, that the district court reached its ulti-

mate conclusion that the 2013 plans were intentionally dis-

criminatory. The court did not point to any evidence suf-

ficient to rebut the strong presumption of good faith that

applies in these circumstances. Nor do plaintiffs make

any real effort to do so before this Court.

Plaintiffs in the congressional case consign their re-

sponse to a single footnote, asserting that “[e]ven were

the Court to determine that the proper focus of the ques-

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

2013 Legislature instead of the 2011 Legislature, * * *

[the district court’s] findings are not clearly erroneous

and should not be overturned by the Court.” Cong. Br.

34 n.20. The other plaintiffs similarly ask this Court to

ignore the district court’s errors of law by invoking the

“deferential clear-error standard.” House Br. 41. As

this Court has long recognized, however, the clear-error

standard does not apply to “a finding of fact that is pred-

icated on a misunderstanding of the governing rule of

16

law.” Bose Corp. v. Consumers Union of U.S., Inc.,

466 U.S. 485, 501 (1984); ef. Cooper, 137 S. Ct. at 1474

(“[W]e review a district court’s finding as to racial pre-

dominance only for clear error, except when the court

made a legal mistake.”).

Instead of identifying record evidence that demon-

strates discriminatory intent by the 2013 Legislature,

plaintiffs reiterate the conclusory statements in the dis-

trict court’s opinions. For example, plaintiffs recite that

the court “found that the State stuck with its original dis-

tricts because it ‘intended’ to ‘maintain|]’ the discrimina-

tory ‘taint’ that had originally motivated the districts.”

House Br. 41 (quoting H.J.S. App. 359a) (brackets in

original). But the cited page of the court’s decision refers

to no evidence, and instead expounds upon the court’s le-

gal premise that the “racially discriminatory intent and

effects that [the court] previously found in the 2011 plans

carry over into the 2013 plans where those district lines

remain unchanged.” H.J.S. App. 359a.

Similarly, plaintiffs echo the district court’s pur-

ported “flinding]” that the 2013 Legislature “‘did not

adopt the Court’s plans with the intent to adopt legally

compliant plans free from discriminatory taint, but as

part of a litigation strategy.” Cong. Br. 20 (quoting

C.J.S. App. 40a); see House Br. 19-20, 43. As noted (U.S.

Br. 41), a State’s decision to accept a judicially vetted re-

medial plan presumptively furthers—not frustrates—

Congress’s goals of preventing and redressing unlawful

discrimination. And plaintiffs point to nothing in the trial

record showing that the State’s “litigation strategy” was

a pernicious one designed to reinforce existing discrimi-

nation, as opposed to an effort to enact a lawful redis-

tricting plan. Plaintiffs’ assertion that “Texas wanted to

bring this litigation to an end in order to keep in place

17

the districts its Legislature had drawn in 2011 for dis-

criminatory reasons,” House Br. 45 (emphasis omitted),

appears to rest only on speculation, not on evidence.

Plaintiffs also posit that the district court “heard

Texas’s witnesses [and] found their proffered explana-

tions pretextual.” House Br. 41 (citing H.J.S. App. 345a-

346a, 348a, 353a-359a); cf. C.J.S. App. 32a-46a (contain-

ing same passages). But the cited pages do not reference

any testimony that the court found “pretextual” or oth-

erwise not credible. Instead, those pages contain discus-

sion articulating the court’s legal theory, H.J.S. App.

345a-348a, and explaining its conclusion that the 2013

Legislature failed to “engage in a deliberative process to

ensure that the 2013 plans cured any taint from the 2011

plans,” id. at 353a; see id. at 353a-359a. The sole witness

for the State whose testimony the court described at any

length was Jeff Archer, the Legislature’s chief counsel.

See H.J.S. App. 356a-358a & nn.43, 45; C.J.S. App. 43a-

45a & nn.43, 45. But the court credited that testimony:

Archer testified, and the court agreed, that the 2013

Legislature was aware that the interim plans were

based on provisional rulings rather than “final determi-

nations,” C.J.S. App. 44a, and that enacting the 2013

plans would likely not moot the litigation because

“Plaintiffs would pursue claims against the interim

maps,” id. at 44a n.45.

It is true that the 2013 plans were enacted by “a sub-

stantially similar Legislature with the same leadership”

as existed in 2011. House Br. 46 (quoting H.J.S. App.

352a n.37). Contrary to plaintiffs’ assumption, however,

a court is not “entitled to infer” (ibid.) that a later leg-

islature has acted with discriminatory intent solely be-

cause a prior legislature was found to have done so.

“(P Jast discrimination cannot, in the manner of original

18

sin, condemn governmental action that is not itself unlaw-

ful.” City of Mobile v. Bolden, 446 U.S. 55, 74 (1980)

(plurality opinion). If the existence of past misconduct

were sufficient, standing alone, to sustain a finding of

present misconduct, the presumption of legislative good

faith would have no meaning. U.S. Br. 28.

Plaintiffs suggest that the Legislature enacted the

2013 plans “with no discussion or debate over concerns

raised by minority legislators.” House Br. 46. Plaintiffs

do not identify evidence in the trial record that they be-

lieve supports that observation. In any event, plaintiffs

fail to explain why the appropriate inference to be

drawn from the Legislature’s adoption of the interim

plans largely without amendment was that the Legisla-

ture was motivated by intentional discrimination, as op-

posed to an interest in enacting lawful plans likely to

survive further challenge. Indeed, the Legislature may

have been concerned that if it engaged in race-conscious

revisions of the interim plans, it could later face claims

that it engaged in impermissible 1 acial gerrymandering

by drawing majority-minority districts that the court it-

self had previously determined were likely not required

by the VRA. Cf. id. at 52 (arguing that legislative revi-

sions to HD90 in 2013 caused it to become a “deliberate

racial gerrymander”).

Finally, plaintiffs seek to treat as evidence of dis-

crimination the fact that the challenged districts in the

2013 plans were “exactly the same” as the correspond-

ing districts in the 2011 plans. House Br. 46; see Cong.

Br. 1, 18, 24, 28. But those districts were identical pre-

cisely because the district court, consistent with this

Court’s directives in Perry, had allowed their continued

use in 2012 after finding that plaintiffs’ challenges to

19

those districts were unlikely to succeed or were insub-

stantial. The very facts that render a legislative action

entitled to the strong presumption of good faith cannot

simultaneously rebut that presumption.

Ill. CONGRESSIONAL DISTRICT 35 IS NOT AN

UNCONSTITUTIONAL RACIAL GERRYMANDER

A. The district court also erred in concluding that

(CD35 was an unconstitutional racial gerrymander. See

U.S. Br. 44-48. As an initial matter, the circumstances of

the Legislature’s action indicate that race did not predom-

inate in CD385’s enactment in 2013 because the Legisla-

ture enacted the 2013 congressional plan so that all of its

districts would match precisely the districts provisionally

found to be lawful in 2012. Cf. Texas Br. 34a-36a (text of

2013 enactment “adopt{ing]” court’s interim redistricting

plan “as the [State’s] permanent plan”). .

In any event, CD35 would survive strict scrutiny be-

cause the State had “good reasons” to believe that the

VRA required it to draw CD35 in 2011 and to maintain it

in 2013. Cooper, 137 S. Ct. at 1464 (citation omitted). In-

deed, in 2011, a subset of plaintiffs proposed and sup-

ported the creation of CD35 as “an appropriate § 2” La-

tino opportunity disurict. C.J.S. App. 174a. And in 2012,

the district court itself provisionally concluded that

CD35 was a valid Section 2 district. Jd. at 409a-415a.

Those considerations provided, at a minimum, sufficient

“breathing room” for the State to reasonably conclude in

2013 that CD35 addressed a VRA need and that main-

taining it would not violate the Equal Protection Clause.

Cooper, 137 S. Ct. at 1464 (citation omitted).

B. Plaintiffs’ responses identify no sound basis for con-

cluding otherwise. Plaintiffs assert that the district court

was correct to find racial predominance because “nearly

20

every traditional districting principle in CD35 was subor-

dinated to race.” Cong. Br. 36. But that argument improp-

erly focuses on 2011, when CD35 was first drawn, rather

than on 2013, when the operative congressional plan was

enacted in accordance with the district boundaries that

the court provisionally found lawful in 2012.

Plaintiffs’ discussion of strict scrutiny repeats the dis-

trict court’s errors. Plaintiffs note that “(t)he district

court found * * * that ‘the third Gingles precondition is

not present in a significant portion of the district’” be-

cause “Travis County Anglos lack cohesion and split

their vote.” Cong. Br. 38 (citation omitted); ef. Thorn-

burg v. Gingles, 478 U.S. 30, 51 (1986) (requiring that the

“majority votes sufficiently as a bloc to enable it * * *

usually to defeat the minority’s preferred candidate”).

But as this Court has explained, “the basic unit of analysis

for racial gerrymandering claims * ** is the district,”

and a court should not focus on “particular portions [of

the district] in isolation.” Bethune-Hill, 137 8. Ct. at 800.

The district court here failed to address whether voting

patterns were racially polarized across CD35 as a whole.

And had it performed the required “holistic analysis,”

ibid., the court necessarily would have concluded that

racially polarized voting existed in CD35. See U.S. Br.

47-48.

Plaintiffs also theorize (Cong. Br. 39) that the State

cannot “seek refuge in § 2” because the creation of CD35

was not contemporaneously “informed by” an “inquiry

into § 2 requirements.” But ae already noted, a group of

plaintiffs themselves urged the Legislature to draw

CD35 in 2011 precisely because they believed the district

to be required by Section 2. See C.J.S. App. 174a; C.J.S.

Supp. App. 152a, 158a, 315a-317a, 319a-320a. All agreed

in 2011 that at least seven Latino opportunity districts

21

needed to be drawn in South and West Texas in order to

comply with the VRA, see C.J.S. App. 112a & n.85, 126a-

127a, 176a, and CD35 extended within that region.

Moreover, this Court’s racial-gerrymandering prece-

dents do not require a State, in drawing a Section 2 dis-

trict, to develop the full factual record that it could later

marshal in subsequent litigation. To survive strict scru-

tiny, it suffices that the State’s “actual purpose” was

compliance with the VRA and that it had a “strong basis

in evidence to support that justification,” even if that ba-

sis in evidence was not contemporaneously memorialized

in exhaustive detail. Shaw v. Hunt, 517 U.S. 899, 908 n.4

(1996). And when the Legislature enacted the 2013 plan

containing CD35, the district court’s 2012 decision itself

furnished a strong basis in evidence.

Finally, plaintiffs suggest that CD35 cannot survive

strict scrutiny because the Legislature’s “‘actual pur-

pose’” in drawing CD35 was to “dismantle|] the existing

crossover district there” (7.¢., former CD25). Cong. Br.

39 (citation omitted); ef. U.S. Br. 10 n.5 (defining

““erossover’ district”). But the district court made no

such finding. Indeed, plaintiffs sought to press the

same argument about CD25 as a freestanding claim of

intentional racial discrimination, but the district court

expressly declined to reach that claim. See C.J.S. App.

llla n.83, 172a n.38. And when the court earlier ad-

dressed that claim in the context of the 2012 interim

plans, it was “unable to conclude” that the “dismantling

of CD 25 was motivated by a discriminatory purpose as

opposed to partisan polities.” /d. at 415a.’ Plaintiffs thus

" The United States argued in the preclearance litigation that CD25

was not a “protected crossover district” and that its dismantiement

therefore was not unlawful. Texas v. United States, 887 F. Supp. 2d

22

fail in their effort to indirectly challenge the elimination of

former CD25 by recasting it as a racial-gerrymandering

challenge to CD35.

For the foregoing reasons and those stated in our

opening brief, the Court should reject the bases for the

district court’s findings of intentional discrimination as

to eight unchanged districts, and it should reverse the

finding of a racial gerrymander as to CD35,

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

APRIL 2018

133, 179 & n.1 (D.D.C, 2012) (separate opinion for the Court by Howell,

J.), vacated and remanded, 570 U.S. 928 (2013).