# Reply Brief — Abbott v. Perez (Nos. 17-626, 17-586)

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0794%3A6

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2017

## Text

No. 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 SUPPORTING
JURISDICTIONAL STATEMENT

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

MICHAEL P. MURPHY
ANDREW B. DAVIS
Assistant Solicitors General

OFFICE OF THE
ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
scott.keller@oag.texas.gov
(512) 936-1700
EE

TABLE OF CONTENTS

|. This Court Has Jurisdiction to Review the
a l

Il. The 2013 Legislature Did Not Engage in
Intentional Discrimination When It Enacted

IIL H358 Does Not Cause Any Vote-Dilution................. 8

IV. The Legislature Did Not Engage in
Unconstitutional Racial Gerrymandering in

EE 10
eT 13
TABLE OF AUTHORITIES

Cases:

Carson v. American Brands, I'nc.,

450 U.S. 79 (1981) psiiesiiemeeieperemeunngsennemenns 3
Connor v. Waller,

421 U.S. 656 (1975) (per curiam)...........:seceeneensees 6
Cooper v. Harris,

ite erinentmemedeeenmmsaneesensees 3, 12
Gunn v. Univ. Comm. to End the

War in Viet Nam,

a eesamrcinspnmmcinticeesies 1,2
Liberty Mut. Ins. Co. v. Wetzel,

i ee 3

(1)

I]

Cases—Continued:
Miller v. Johnson,
515 U.S. 900 (1995)

Palmer v.
403 U.S. 217 (1971)

Perry v. Perez,
565 U.S. 388 (2012) (per curiam)
Pers. Adm’r of Mass. v. Feeney,
442 U.S. 256 (1979) 7,8
Pullman-Standard v. Swint,
456 U.S. 273 (1982)
Shaw v. Reno,
yy
Thornburg v. Gingles,
478 U.S. 30 (1986)
Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens,
529 U.S. 765 (2000) ........--ccssesereeerererenensnssrsneesnssseneneees
White v. Regester,
412 U.S. 755 (1973)
Statutes:
28 U.S.C. $1253
52 U.S.C. $10301(b)

The plaintiffs’ attempt to recycle failed jurisdictional
arguments that were raised and rejected in the stay pa-
pers confirms this Court’s jurisdiction. And their effort
to defend the district court’s decision to issue an advisory
opinion about a moot challenge to a map never employed
in a single election only confirms that the district court
addressed the wrong question about the wrong map.
This Court should deny the plaintiffs’ motions and note
probable jurisdiction or summarily reverse.

L This Court Has Jurisdiction to Review the District
Court’s Order.

The plaintiffs do not seriously dispute that the dis-
trict court’s order invalidating Plan H358 had the practi-
eal effect of precluding its use in the 2018 elections. Nor
could they, as the district court held that multiple State
House districts violate the Constitution or the Voting
Rights Act, and that those violations “must be reme-
died.” J.S. App. 85a. Moreover, it made clear that if the
Legislature did not immediately redraw these districts,
the court would—and would do so in time for the 2018
elections. After all, the court would not have needed to
put the Governor on a three-business-day deadline and
otherwise rush to redraw the map if it had not already
determined that the existing map could not be used in
2018.

The plaintiffs claim that none of this matters because
Gunn v. University Committee to End the War in Viet
Nam, 399 US. (1970), “has already squarely re-
jected” the State’s jurisdictional argument. MALC Mot.
19. But that argument has no more force now than when
it was raised and rejected during the stay proceedings.

(1)

2

The starkly different facts and the reasoning in Gunn
underscore that this Court has jurisdiction here. Gunn
reasoned that “[o}ne of the basic reasons for the limit in
28 U.S.C. § 1253 upon [the Court’s] power of review is
that until a district court issues an injunction, or enters
an order denying one, it is simply not possible to know
with any certainty what the court has decided—a state
of affairs that [was] conspicuously evident” in that case
because the order appealed from was unclear as to what
“was to be enjoined,” “against whom” the injunction
would run, and whether “all the provisions of the statute”
were to be enjoined. Gunn, 399 U.S. at 388. Here, by con-
trast, the district court’s order clearly blocks the State of
Texas from using Plan H358 in 2018. The plaintiffs do not
suggest otherwise.

The plaintiffs argue that the district court’s order is
a mere liability determination, not an injunction, because
“there are many potential ways to remedy a particular
violation.” MALC Mot. 21. But this confuses whether the
court’s order is the final order in this case with the dis-
tinct question whether it enjoins the existing map. An in-
junction does not have to definitively resolve the case
(otherwise, no preliminary injunction would be appeala-
ble); it just has to prevent the appealing party from doing
something.’ Because the district court’s order prevents
the State from conducting future elections using H358, it
is appealable and not merely a resolution of liability. Cf

' The district court’s order here did much more than simply
order the State “to come to court prepared to discuss reme-
dies.” MALC Mot. 21 n.9.

3
Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 742 (1976).
This suffices to provide the Court with jurisdiction under
§1253 even though the district court has not yet com-
pleted the remedial phase of the case.

The plaintiffs’ reliance on White v. Regester, 412 U.S.
755 (1973), is also misplaced (as it was at the stay stage),
as that case actually supports the State. White held that
jurisdiction existed to review a district court order de-
claring Texas's House redistricting map unlawful, order-
ing the State to reapportion two counties into single dis-
tricts, and stating that the court would reapportion the
districts if the State did not. /d. at 760-61. That is exactly
what the district court’s order on Plan H358 does. The
only distinction is that the district court in White ex-
pressly labeled its order an injunction. But as Carson v.
American Brands, Inc., 450 U.S. 79 (1981), makes clear,
it is the practical effect—not the label—of the order that
matters. /d. at 83. Because the district court’s order has
the same practical effect as the order in White and nu-
merous other cases over which this Court has exercised
jurisdiction, see, e.g., Cooper v. Harris, 137 8. Ct. 1455
(2017); Gill v. Whitford, No. 16-1161 (U.S.), it is equally
appealable. The plaintiffs’ contrary argument would ar-
tificially restrict Carson and allow district courts to
evade this Court’s jurisdiction by omitting magic words
from their orders.

IL The 2013 Legislature Did Not Engage in Inten-
tional Discrimination When It Enacted Court-Or-
dered Districts as Its Own.

The district court held that in 2013, the Texas Legis-
lature engaged in intentional racial discrimination when

4

it adopted districts ordered by the district court itself un-
der this Court’s instruction to enter a remedial plan that
had no discriminatory purpose or effect. See Perry v. Pe-
rez, 565 U.S. 388 (2012) (per curiam). That holding is both
extraordinary and misleading. See J.S. 14-15.

1. The plaintiffs cannot deny that the district court’s
conclusion that the 2013 Legislature engaged in inten-
tional discrimination by embracing the court’s own reme-
dial plan was driven entirely by the court’s (erroneous)
view that the 2011 Legislature engaged in intentional dis-
crimination when it enacted the 2011 plan. That is wrong,
as the relevant question for purposes of challenges to
Plan H358 is why the 2013 Legislature enacted that plan.
The motives of the 2011 Legislature in enacting a differ-
ent plan simply did not matter. Unlike discriminatory ef-
fect, discriminatory intent does not carry over from one
legislative enactment to another—and different—one.
Accordingly, whether the plaintiffs had viable challeges
to the 2011 plan was a question the district court never
should have been asking in the first place.

The plaintiffs wisely concede that the district court
lacked Article III jurisdiction over those challenges* be-
cause “any challenge to the continued use of Plan H283
would be moot.” MALC Mot. 1.° Yet they nonetheless

* The plaintiffs helpfully note that their claims ultimately chal-
lenge statutes passed by the Legislature, not lines on a map.
See MALC Mot. 1-2. Once the 2011 statute was repealed, the
plaintiffs could bring live claims only against the 2013 statute
that replaced it.

* The plaintiffs’ desire for preclearance bail-in under VRA
§3(c) could not keep those claims alive. Bail-in is not a “claim

5

maintain that the court’s issuance of an advisory opinion
on the 2011 plan “matters not at all” because the court
“just as easily could have put” its findings on the 2011
plan into its opinion on Plan H358 instead of issuing a
separate decision on the validity of the 2011 plan. /d. at
27. That misses the point. The advisory opinion on the
2011 plan is problematic not just because of the form in
which it was issued, but because it asked the wrong ques-
tion about the wrong legislature. The district court had
no business adjudicating moot challenges to a repealed
map or evading a clear focus on whether the 2013 Legis-
lature adopted the district court’s own map for discrimi-
natory reasons.

The district court thought otherwise only because it
was under the profoundly mistaken impression that the
purported discriminatory intent of a past legislature
must be “cured” by a future one. In reality, what matters
is why the 2013 Legislature enacted the district court’s
remedial plan as its own. And the answer is clear: be-
cause that was its best chance to put an end to protracted
litigation by enacting a districting plan that would pass
constitutional and VRA muster.

against Plan H283,” MALC Mot. 27 n.10; it is a prospective
remedy that requires a judgment on live claims. And preclear-
ance alone cannot provide Article III standing because it does
not cure an ongoing concrete injury-in-fact currently suffered
by the plaintiffs from Plan H283. See, e.g., Vt. Agency of Nat.
Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 773 (2000) (holding
that a plaintiff's interest in a benefit—there, a qui tam rela-
tor’s bounty—“that is merely a ‘byproduct’ of the suit itself
cannot give rise to a cognizable injury in fact for Article III

standing purposes”).

6

2. The plaintiffs attempt to resist that conclusion by
emphasizing that the district court’s 2012 remedial deci-
sion was not a final adjudication of challenges to the dis-
tricts that the Legislature embraced. No one said it was.
Indeed, the preliminary posture of that decision is part
and parcel of why the district court applied a standard
uniquely favorable to the plaintiffs.‘ But once the district
court drew a map that remedied every district with a col-
orable defect based on a pro-plaintiff standard, that gave
the Legislature every reason to believe that the map did
not violate the Constitution or the VRA. It would have
been strange indeed for the Legislature to ignore a di-
rectly on-point opinion from a federal court simply be-
cause it reflected preliminary, not final, findings and con-
clusions.

The plaintiffs nonetheless suggest that the Legisla-
ture should have held off because those conclusions
“could change after a full trial on the merits.” MALC
Mot. 28. But there was no guarantee that there would
ever be a trial on the 2011 plan, as the court could not
hold one unless and until the plan was precleared. See,
e.g., Connor v. Waller, 421 U.S. 656, 656 (1975) (per cu-
riam). And indeed, the 2011 plan never was precleared,
so (but for the district court’s insistence on adjudicating

* Claims of retrogression and intentional discrimination under
VRA $5 were judged under “the low ‘not insubstantial’ stand-
ard,” J.S. App. 313a, outlined by this Court in Perry v. Perez.
J.S. App. 302a. The remaining claims were considered under
the standard for preliminary injunctions, which requires only
a showing that the plaintiff is likely to succeed, not that it will
actually do so. /d.

7

moot claims) the challenges to that map never should
have been finally adjudicated.

3. The plaintiffs fare no better with their effort to in-
sulate the district court’s ruling from review by recasting
it as a finding of fact. MALC Mot. 24-25, 29. The clear-
error standard does not apply to fact findings that rest
on legal errors. Pullman-Standard v. Swint, 456 U.S.
273, 287 (1982). And the district court’s conclusion about
the 2013 Legislature’s purpose is built on several legal
errors—beginning with its failure to dismiss moot claims
against the 2011 plan, on the theory that the 2013 Legis-
lature could be held responsible for the purported
wrongs of the 2011 Legislature, and ending with its ap-
plication of a novel intentional-discrimination standard
that conflicts with this Court’s holding in Personnel Ad-
ministrator of Massachusetts v. Feeney, 442 U.S. 256,
279 (1979). See J.S. 24-25.

In reality, the district court’s assessment of the dis-
tricts it ordered in 2012 gave the Legislature the best
possible basis to believe that adopting the district court’s
plan as its own would achieve compliance with the Con-
stitution and the VRA. The district court’s opinion in
2012 was crystal clear: “this Court’s interim
plan ...does not incorporate any portion of the State
map that is allegedly tainted by discriminatory purpose.”
J.S. App. 305a. The Legislature did not engage in inten-
tional discrimination by taking the district court at its
word.

Indeed, neither the plaintiffs nor the district court
has identified any evidence that the 2013 Legislature

8

adopted Plan H358, or failed to alter any district, “be-
cause of,” not “in spite of,” its effect on minority voters.
Feeney, 442 U.S. at 279.° To the contrary, the district
court all but admitted that it had no basis to find actual
discriminatory purpose by the 2013 Legislature when it
expressly found “that the intentional discrimination in
2013 was limited to the Legislature’s intent to maintain
and perpetuate (without remedy) any infirmities in the
plan that already existed.” J.S. App. 7a. The undisputed
fact that the 2013 Legislature relied on the district
court’s own remedial order, not to mention the presump-
tions of good faith and constitutionality, Miller v. John-
son, 515 U.S. 900, 916 (1995), should have foreclosed any
finding of discriminatory purpose here.

IIL Plan H358 Does Not Cause Any Vote !)ilution.

Even setting aside the district court’s fatally flawed
intent holding, the plaintiffs’ vote-dilution claims still
should have been rejected for failure to prove discrimi-
natory effect. The plaintiffs try to get around that prob-
lem by arguing that vote-dilution claims do not require
proof of vote-dilutive effect. That self-contradictory ar-
gument conflicts with this Court’s precedent and the text
of VRA §2.

This Court has made clear that a claim of intentional
vote dilution under the Fourteenth Amendment requires
proof of both intent to dilute minority voting strength
and actual vote-dilutive effect. See, eg., Shaw v. Reno,
509 U.S. 630, 641 (1993) (electoral systems “violate the

®° The plaintiffs do not even attempt to defend the district
court’s one-person, one-vote rulings. Cf. J.S. 25-27.

)

Fourteenth Amendment when they are adopted with a
discriminatory purpose and have the effect of diluting
minority voting strength”). Discriminatory intent alone
cannot establish a constitutional violation. See, e.g.,
Palmer v. Thompson, 403 U.S. 217, 224 (1971).

Accordingly, the plaintiffs must prove that they sat-
isfy all three of the preconditions established by Thorn-
burg v. Gingles, 478 U.S. 30 (1986), to prove that minority
voters actually “have less opportunity than other mem-
bers of the electorate to participate in the political pro-
cess and to elect representatives of their choice.” 52
U.S.C. §10301(b). If those preconditions are not estab-
lished, there is no basis to conclude that a plaintiff has
been denied equal access to the political process and
therefore no vote-dilutive effect.°

Even if the plaintiffs’ newfound theory were sound, it
is not the theory they advanced below. From the begin-
ning, they have maintained that the Legislature inten-
tionally diluted minority voting strength because “de-
spite massive minority population growth statewide,’ [it]
created no increase in the number of minority oppor-
tunity districts.” MALC Mot. 3-4. And the failure to draw
more legislative districts is the only harm they point to
here. See id. at 32 (complaining that Dallas County dis-
tricts “deny Latinos their fair share of seats within the

° The plaintiffs’ attempt to limit their no-Gingles-required the-
ory to cases involving intentional discrimination imposes no
limit at all. See MALC Mot. 31. The plaintiffs—and the district
court—erroneously rely on the State’s failure to draw districts
not required by Gingles as evidence of intentional discrimina-
tion.

10

county”). Yet, except in Nueces County, it is not even
possible to draw additional majority-Hispaniec districts.
That should end the inquiry.

Even if two majority-Hispanic districts could have
been drawn in Nueces County, there is no evidence of
vote-dilutive effect there either, as the evidence showed
the electoral performance in those two districts would
have been “so low as to indicate a lack of real electoral
opportunity in both districts.” J.S. App. 44a. That evi-
dence was introduced by MALC to prove that two bare
majority-minority districts would not have been minor-
ity-opportunity districts under Gingles. Id. Moreover,
that it may now be possible to draw two bare-HCVAP-
majority districts in Nueces County does not prove that
the Legislature diluted Hispanic voting strength by fail-
ing to draw such districts, particularly when doing so ar-
guably would have overrepresented Hispanic voters. /d.
at 5la. And alleged statewide underrepresentation is
completely irrelevant to the question of vote dilution in
Nueces County, MALC Mot. 34, particularly when the
district court correctly found that “Hispanics are being
elected to countywide offices and as house district repre-
sentatives, indicating a lack of barriers to candidacy and
election.” J.S. App. 55a.

IV. The Legislature Did Not Engage in Unconstitu-
tional Racial Gerrymandering in HD90.

The Texas Latino Redistricting Task Force’s motion
shows how the district court’s analysis as to HD90 put
the Legislature in a double bind. The Task Force does
not even attempt to defend the district court’s illogical
determination that HD90 was “tainted” by intentional

1]

discrimination supposedly left over from 2011. J.S. App.
83a, 85a. Nor could it, as the Legislature redrew the dis-
trict in 2013, and the district court itself correctly con-
cluded that the redrawn district evinced a “lack of a dis-
criminatory intent.” Jd. at 84a. Indeed, the Task Force
effectively concedes the district court’s error when it
claims that the 2013 Legislature should have “refrain|ed|
from redrawing HD90 in 2013.” Task Force Mot. 25. But
that claim succeeds only in confirming that, in the plain-
tiffs’ view, the 2013 Legislature was bound to violate ei-
ther the VRA or the Fourteenth Amendment no matter
what it did in HD90.

The facts in HD90 are not disputed. The district was
reconfigured to honor an African-American neighbor-
hood’s request to be brought back into the district, while
also maintaining the district’s Hispanic-voter-registra-
tion majority.’ J.S. App. 72a-74a, 77a, 83a. The Legisla-
ture kept the percentage of Hispanic voters as close as
possible to the preexisting level in direct response to
MALC’s claim that reducing the percentage of Hispanic
voters would violate VRA §2. Yet the Task Force still
brought VRA §2 vote-dilutive-effect claims against the
State. Jd. at 69a-70a, 83a-84a. If taking race into account
to avoid a VRA §2 claim actually threatened by one mi-

* Texas does not concede that the motives or acts of a single
staff member or legislator can be attributed to the entire Leg-
islature. But if they are, the Legislature must also get the ben-
efit of their favorable knowledge and statements. Cf Task
Force Mot. 22 (arguing that Texas cannot rely on conversa-
tions between staff members).

12

nority group just lays the groundwork for a racial gerry-
mandering claim by another, then there really is no
“breathing room” for the Legislature to draw districts
that comply with both the VRA and the Constitution.
Cooper, 137 S. Ct. at 1464.

13

CONCLUSION

The Court should deny the plaintiffs’ motions and
note probable jurisdiction, or summarily reverse the dis-
trict court’s order invalidating Plan H358.

Respectfully submitted.

PAUL D. CLEMENT
ERIN E. MURPHY

KIRKLAND & ELLIS LLP
655 Fifteenth Street, N.W.
Washington, D.C. 20005

DECEMBER 2017

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant
Attorney General

Scott A. KELLER
Solicitor General
Counsel of Record

MATTHEW H. FREDERICK
Deputy Solicitor General

MICHAEL P. MURPHY
ANDREW B. DAVIS
Assistant Solicitors Genera!

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_0794%3A6. Public record. Not legal advice.