By adopting court-created remedial interim redistricting plans, did the Texas legislature engage in intentional racial discrimination, vote dilution, and racial gerrymandering in violation of the Constitution and the Voting Rights Act, and does the Court have jurisdiction to hear the case?
After a federal court struck down the Texas State Legislature’s redistricting plans as racially discriminatory and issued substantially similar interim plans for the 2012 election, the Legislature adopted those interim plans as law. However, Texas Voters (both individual voters and organizations) claim that these plans are still infected by discriminatory intent and effect. Texas argues that its Legislature did not engage in racial discrimination, vote dilution, or racial gerrymandering. Further, Texas insists that when its new Legislature repealed the old plans and adopted court-created new plans, any purported discriminatory intent was eliminated. Voters counter that the Supreme Court should adhere to the lower court’s finding of discrimination, which was not cleansed by a legislative workaround that essentially reenacted the original, problematic plans. This case requires the Supreme Court to determine when a state legislature exhibits a discriminatory intent in reconfiguring its electoral districts and how deeply that intent permeates into subsequent legislation. Further, this case may redefine the parameters for courts to evaluate redistricting, balancing the needs to protect voters’ rights and preserve state sovereignty.
Questions as Framed for the Court by the Parties
1) Whether the district court issued an appealable interlocutory injunction when it invalidated Texas’ duly enacted redistricting plan and ordered the parties to appear at a remedial hearing to redraw state congressional districts unless the governor called a special legislative session to redraw the congressional map within three days; (2) whether the Texas legislature acted with an unlawful purpose when it enacted a redistricting plan originally imposed by the district court to remedy any potential constitutional and statutory defects in a prior legislative plan that was repealed without ever having taken effect; (3) whether the Texas legislature engaged in intentional vote dilution when it adopted Congressional District 27 in 2013 after the district court found, in 2012, that CD27 did not support a plausible claim of racially discriminatory purpose and did not dilute Hispanic voting strength because it was not possible to create an additional Hispanic opportunity district in the region; and (4) whether the Texas legislature engaged in racial gerrymandering in Congressional District 35 when it simply adopted the district unchanged as part of the court-ordered remedial plan.
In 2011, Texas’ 82nd Legislature (“Legislature”) proposed Plans C185 and H283 (“2011 Plans”) to change its voting districts before the 2012 elections. Pursuant to Section 5 of the Voting Rights Act (“VRA”), Texas sought preclearance of the 2011 Plans from the United States District Court for the District of Columbia (“DC Court”).
At the same time, numerous individuals and organizations, including the Mexican American Legislative Caucus, the NAACP, and the League of United Latin American Citizens (“Voters”) filed suit in the United States District Court for the Western District of Texas (“Texas Court”) to challenge the 2011 Plans under both Section 2 of the VRA and the Fourteenth and Fifteenth Amendments. The Voters also challenged the preclearance in the DC Court.
By February 2012, only a month before Texas’ primary elections, the DC Court had conducted a trial but had not issued a decision. Without a decision, Texas could not use the 2011 Plans in their elections. Because of the impending elections, the Texas Court implemented Interim Plans C235 and H309 (“Interim Plans”) so the primary elections could proceed. In formulating the Interim Plans, the Texas Court attempted to discern which portions of the 2011 Plans the DC Court would find substantially problematic, and thus needed to be altered. The parts of the 2011 Plans that the Texas Court did not deem substantially problematic were preserved.
On August 28, 2012, after Texas used the Interim Plans, the DC Court denied preclearance of the 2011 Plans. Specifically, it found that Plan C185 would increase discrimination in voting distribution, and that Plan H283 would negatively affect minority voting rights. Although Texas immediately appealed the DC Court’s decision to the U.S. Supreme Court, the Texas Attorney General urged the Texas Legislature to heed the DC Court decision and permanently adopt the Interim Plans.
In response, Governor Rick Perry called a special session to permanently adopt the Interim Plans. The session revised Plan H309 and adopted it as Plan H358, and adopted Plan C235 without change. On June 26, 2013, the Governor enacted Plan H358 and Plan C235 (“2013 Plans”).
On June 25, 2013, while Texas’ appeal of the DC Court’s decision was pending in the Supreme Court, the Court decided Shelby County v. Holder, 570 U.S. 529 (2013), which held that Section 4(b) of the VRA, which determined which jurisdictions required preclearance, was unconstitutional. After Shelby County, Texas’ voting district changes no longer automatically needed preclearance. Thus, pursuant to Shelby County, the Supreme Court vacated the DC Court’s judgment and remanded for further consideration. The DC Court then dismissed the preclearance litigation on mootness grounds.
On June 28, 2013, Texas filed several motions to dismiss in the Texas Court cases, arguing that the case was now moot. The Texas Court denied the motions and allowed the Voters to amend their pleadings to challenge the 2013 Plans and seek relief under Section 3(c) of the VRA for the 2011 Plans. The Texas Court held that the 2011 Plans violated the Fourteenth Amendment and Section 2 of the VRA. Subsequently, in 2017, the Texas Court issued an interlocutory order addressing the 2013 Plans and holding that the Plans continued the 2011 Plans’ intentional discrimination, racial gerrymandering, and vote dilution where the district lines had been preserved as-is. The Texas Court ordered the Attorney General to state\ in writing within three days whether the Legislature would redistrict to cure the violations. If the Legislature declined to redistrict, the Court would hold a hearing to make remedial plans.
On September 12, 2017, the Supreme Court stayed the Texas Court’s order pending appeal. On January 12, 2018, the Supreme Court consolidated the two appeals and determined that the jurisdiction and merits questions would be considered together.
DOES THE SUPREME COURT HAVE JURISDICTION?
The United States (“U.S.”), in support of Texas, argues that pursuant to 28 U.S.C. § 1253 (“§ 1253”) the Supreme Court has jurisdiction to review the district court’s order because it has the “practical effect” of an injunction. The U.S. asserts that § 1253 is analogous to 28 U.S.C. § 1292(a)(1) (“§ 1292”), which the Supreme Court analyzed in Carson v. American Brands, 450 U.S. 79 (1981). The U.S. maintains that, based on Carson’s reading of § 1292, § 1253 should be read to allow appellate jurisdiction for orders not expressly related to injunctions if the orders: (1) have the “practical effect” of granting or denying an injunction, (2) pose serious, irreparable consequences, or (3) can only be “effectively challenged” by immediate appeal. Texas contends that, in this case, the Texas Court order had the “practical effect” of prohibiting Texas from holding any elections with its current plans. Texas posits that the order also posed serious, irreparable consequences because it immediately invalidated enacted plans, and needed to be appealed immediately because any postponed review would be too late to prevent the irreversible harm of being prohibited from using the plans in the 2018 elections.
In response, the Voters argue that Texas ignores the plain language of § 1253, which gives appellate jurisdiction to hear appeals from district courts only for orders expressly involving an injunction. The Voters reject Texas’ attempt to analogize § 1292 with § 1253, and assert that neither Texas nor the United States point to a case in which the Supreme Court adopted the § 1292 construction for § 1253. Furthermore, the Voters contend, the Supreme Court has expressly declined to create a “practical effect” exception to § 1253’s plain-language limitation. The Voters maintain that in cases in which the Texas Court ordered Texas to amend its law or face remedial proceedings, the Supreme Court has held it lacked appellate jurisdiction because the cases did not involve an express injunction. Additionally, even if the Carson analysis were extended to § 1253, the Voters posit that its requirements are not satisfied here because: (1) the order did not have the “practical effect” of preventing elections because setting remedial hearings is simply part of the court’s authority to manage its dockets, (2) a remedial hearing is not the same as an injunction because the nature, scope and timing of the remedy is different, and (3) the order did not threaten serious, irreparable consequences because it merely set a timeline for remedying a constitutional violation.
DID THE LEGISLATURE ENGAGE IN INTENTIONAL DISCRIMINATION?
Texas argues that the Legislature did not act with intentional discrimination when it enacted the interim districts. Texas asserts that efforts to invalidate legislation must begin with a strong presumption of good faith that the law is constitutional and valid. Because federal-court review of districting legislation represents an intrusion on vital local processes, Texas contends, the presumption of good faith strongly applies when a legislature is accused of enacting intentionally discriminatory redistricting legislation. The U.S. maintains that this presumption should be even higher when, as here, a legislature adopts an interim districting plan developed by the district court itself. This is because, the U.S. posits, there is a strong likelihood that the legislature’s adoption of the judicially-approved interim plan was due to good-faith compliance efforts.
Due to the strong presumption of good faith for legislation, the U.S. argues that to invalidate legislation on grounds of intentional discrimination the plaintiff has the burden of proof to show that the state had a discriminatory purpose. To establish a discriminatory purpose, Texas contends, the Voters must show that the Legislature selected its course of action because of, not merely in spite of, its adverse effects on the Voters. The U.S. posits that if there may be legitimate reasons for legislative action – i.e. compliance efforts – a court may not infer a discriminatory purpose. Texas asserts that the Texas Court’s conclusion that the Legislature engaged in intentional discrimination because the Texas Court’s own Interim Plans were themselves infected with intentional discrimination is flawed because: (1) it disregarded the required presumption of good faith, (2) it did not require the Voters to meet the burden of proof, and (3) it was based on the impermissible presumption that discriminatory purpose can transfer from one law to another.
In response, the Voters argue that the Legislature acted with intentional discrimination and that, unless the Texas Court’s findings of intentional discrimination are clearly erroneous, the Supreme Court must accept the Texas Court’s findings. The Voters cite to Rule 52(a)’s deferential clear-error standard as controlling, and contend that 52(a) requires a district court’s assessment of the purpose behind a legislative apportionment plan to be given significant deference on appeal. Further, the Voters note that 52(a) mandates that where there are multiple permissible views of the evidence the factfinder’s choice controls. The Voters assert that this is because intentional discrimination is a question of pure fact, and requires a district court’s familiarity with local politics and ability to perform a local appraisal of the design and impact of the contested districts.
In contrast to Texas and the U.S., the Voters argue that because the analysis is so fact-intensive, the Texas Court was correct to consider all evidence in reaching its determination, including the legislative history and evidence of discrimination in past plans. The Voters assert that when a provision’s original enactment was found to be motivated by a discriminatory purpose, evidence of this past discrimination is relevant to determining discriminatory purpose in the present enactment, even if the laws are facially neutral. Because the 2013 Plans were drawn only two years after the 2011 Plans by a similar Legislature with identical leadership, the Voters maintain that the Texas Court was correct to infer a discriminatory purpose. Further, the Voters contend that Texas cannot use the fact that the Texas Court implemented the Interim Plans to argue against the inference of discriminatory purpose. This is because, the Voters argue, the use of the Interim Plans did not shift the responsibility for the Plans’ creation from the Legislature to the Court. The Voters assert that the Interim Plans, which were based on the Legislature’s 2011 Plans, did not determine rights or shift responsibilities; rather, they temporarily balanced the equities as the litigation proceeded.
DID THE LEGISLATURE ENGAGE IN VOTE DILUTION OR RACIAL GERRYMANDERING?
Texas argues that the Legislature did not engage in racial gerrymandering or vote dilution in its adoption of the Interim Plans. First, it posits that both claims require a showing of discriminatory purpose, which was not established in this case. Texas then asserts that to prove the Legislature violated the Fourteenth Amendment through racial gerrymandering, the Voters must first show that race was a predominant motive in enacting the legislation, and then must show that the law does not pass strict scrutiny. It contends that the Voters’ racial gerrymandering claim fails because the Texas Court, not the Legislature, drew the districts. Texas further claims that, even if racial motives predominated in the 2011 Legislature, the 2013 Legislature properly believed that adopting the Interim Plans was appropriate to comply with VRA §2 because the Texas Court used them in 2012. In addition, Texas maintains that the Voters failed to prove intentional vote dilution because they did not prove that it would have been possible to draw additional majority-minority districts.
In response, the Voters argue that Texas relies on backwards facts. The most accurate way to describe the record, the Voters maintain, is that the Legislature drew the 2011 Plan and that the Texas Court preliminarily allowed the Legislature’s Plan, via the Interim Plan, to be used for the 2012 election without preclearance. The Voters assert that Texas’ racial gerrymandering argument effectively asks the Supreme Court to decide that Texas was entitled to engage in deliberate racial gerrymandering to comply with the VRA. The Voters contend that the Supreme Court cannot grant this entitlement, and that when, as here, race is a dominant consideration in districting, strict scrutiny applies. Furthermore, when strict scrutiny applies, the Voters explain, the question is whether the actual purpose in relying on race is compelling. The Voters posit that, in the absence of clear error, the Supreme Court should defer to the Texas Court’s conclusion about the real motivation for the 2013 Plans. The Voters argue that Texas’ intentional vote dilution argument is flawed because plaintiffs need not prove the ability to draw additional majority-minority districts. The Voters assert that districting plans violate the Fourteenth Amendment, regardless of their facial constitutionality, if purposefully conceived to further racial discrimination by minimizing, cancelling out or diluting the voting strength of certain races.
WHAT ARE THE IMPLICATIONS FOR PRESENT AND FUTURE DISTRICTING PLANS?
Texas contends that, even if a discriminatory “taint” infected its Legislature’s 2011 redistricting plans, those plans were repealed to end the litigation. Curtailing litigation and conserving resources, Texas continues, is not “constitutionally suspect” or indicative of discriminatory intent— it is precisely what a responsible legislature should do to further the public interest. Additionally, Texas argues that adopting the district court’s interim plans remedied any prior taint and that a contrary conclusion would forever condemn all future legislation by making prior discriminatory intent inescapable, even when the Legislature relies on the neutrality of a federal court. Texas rejects the idea that its Legislature must admit fault before its plans become constitutional as impractical and unnecessary. Because the district court disapproved of the Legislature adopting the court-drawn plans but did not provide any guidance on how to remove the taint, Texas argues that the district court has effectively paralyzed its Legislature from permissibly redistricting Texas. Writing in support of Texas, Louisiana and other states (“Louisiana”) agree, elaborating that discriminatory intent from old legislation should not contaminate the bills of a new legislature. Louisiana warns that if a new legislature is cursed with the discriminatory intent of its predecessor but cannot rely on the neutrality of a court’s plans, then no State can trust its courts and may need to redraw its existing electoral districts. Louisiana alleges that such an endeavor would be expensive to taxpayers, erode constituents’ trust in a representative democracy, and slow down elections.
In contrast, the Voters maintain Texas’s “once-bitten-forever-damned mentality” is inaccurate. First, the Voters reason that repealing the 2011 plans and essentially reenacting the same plans did not cleanse the discriminatory intent but rather perpetuated it. Otherwise, the Voters argue, a State could forestall constitutional challenges to its legislation by a repeal and reenact scheme that erroneously erases the discriminatory intent from its legislative history. Second, the Voters insist that the Texas Legislature is not forever prevented from enacting constitutionally valid redistricting plans. If Texas wanted to end the litigation for legitimate, nondiscriminatory reasons, the Voters argue that the Legislature had viable options such as redrawing the maps or defending the merits of its existing plans. Moreover, in support of the Voters, Common Cause and the Voting Rights Institute (“Common Cause”) allege that Texas’s proclaimed reliance on the district court’s plans is disingenuous. Common Cause explains that a State cannot justifiably rely on an interim plan that was plainly “preliminary and temporary” or future courts may be reluctant to issue any provisional action for fear that it will be misconstrued as final. Instead, Common Cause contends that both the discriminatory intent and effects of the prior plans have permeated into the new plans and the proper remedy is to completely remove that taint. Consequently, the Voters perceive no risk of the court unfairly rejecting legitimate and final legislation reflecting a final court decision since the plans here continue the discrimination.
WHAT ARE THE IMPLICATIONS FOR STATE SOVEREIGNTY?
Louisiana claims that demanding the Texas Legislature engage in a more comprehensive deliberative process to enact permissible plans violates Texas’s state sovereignty. A court, Louisiana argues, cannot place parameters on a state legislature’s deliberations; not only is it impossible to measure the quality of deliberation by amount of time, but such requirements are under the gambit of state rules. Louisiana contends that allowing courts to control the legislative process infringes on states’ self-rule by forcing states to adhere to judicial standards and to persuade courts on the soundness of their policies. Furthermore, Louisiana insists that the Texas Legislature’s intentions deserve a presumption of good faith, as redistricting is an important state function that requires cautious court evaluation. Louisiana alleges that if courts ignore a legislature’s legitimate motivations in creating new electoral districts, then courts may find violations simply because they disagree with a state’s policies or processes. The federal courts, Louisiana continues, should not intrude on state affairs and commit such egregious overreach.
The Voters, however, argue that withholding deference when a legislature fails to engage in meaningful deliberation is not unfair to the state. Rather, the Voters maintain that when a legislature quickly pushes through redistricting plans without debate or discussion, the court should be suspicious of an attempt to circumvent real judicial scrutiny. In support of the Voters, the Campaign Legal Center and other voter organizations (“Campaign Legal Center”) claim that, for such rushed plans with a discriminatory history, requiring Texas to prove its plans are valid is not an unreasonable burden. Rather, the Campaign Legal Center insists that “an open and democratic” deliberative process would evidence a state’s desire to eradicate its discriminatory intent. Common Cause adds that one legitimate state motive does not nullify a simultaneous racially discriminatory motive, and that courts should not be blind to legislative history and process because the Legislature’s own discriminatory polices fostered the court’s suspicion in the first place.
- Adam Liptak: Justices to Hear Cases on Voting Rights and Internet Taxes, The New York Times (Jan. 12, 2018).
- Abbott v. Perez, Brennan Center for Justice (Apr. 4, 2018).