State of Texas Redistricting Appeal

7/31/2019 State of Texas Redistricting Appeal

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N O . __

In the

Supreme Court of the United States ________________

STATE OF TEXAS,

Appellant ,v.

UNITED STATES OF AMERICA, ET AL .,

Appellees . ________________

On Appeal from the United States District Courtfor the District of Columbia

________________

APPELLANTS JURISDICTIONAL STATEMENT ________________

GREG A BBOTT Attorney General of TexasD ANIEL T. H ODGE

First Assistant AttorneyGeneral

J ONATHAN F. M ITCHELL Solicitor General of Texas

J AMES D. BLACKLOCK J. REED CLAY , J R .M ATTHEW F REDERICK OFFICE OF THE

ATTORNEY GENERALP.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

(512) 936-1700

P AUL D. CLEMENT Counsel of Record

J EFFREY M. H ARRIS M ICHAEL H. M CG INLEY BANCROFT PLLC1919 M Street, N.W.Suite 470Washington, DC 20036(202) [email protected]

Counsel for Appellant

October 19, 2012 (Counsel continued on inside cover)


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A DAM K. MORTARA J OHN M. H UGHES BARTLIT BECK HERMAN

PALENCHAR & SCOTT LLP54 W. Hubbard Street, Suite 300Chicago, IL 60654(312) 494-4400


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QUESTIONS PRESENTEDIn the decision below, a three-judge district court

refused to grant preclearance under Section 5 of the Voting Rights Act to Texas legislatively enactedredistricting plans for the U.S. House, Texas House,and Texas Senate. The questions presented are:

1. Whether the district court erred andexacerbated the constitutional difficulties withSection 5 by requiring Texas to increase the numberof majority-minority congressional districts inresponse to population growth, by treating coalitionand crossover districts as protected under Section5, and by applying a functional definition of retrogression that fails to give covered jurisdictionsfair notice of the redistricting decisions that will bedeemed to violate Section 5.

2. Whether the district court erred andexacerbated the constitutional difficulties withSection 5 by finding a discriminatory purpose underthe new permissive standard adopted by Congress in

the 2006 reauthorization in attempting to abrogatethis Courts decision in Reno v. Bossier Parish School

Bd. , 528 U.S. 320 (2000).

3. Whether the district court erred andexacerbated the constitutional difficulties withSection 5 by allowing private intervenors to challengethe Texas Senate map, even though DOJ concededthat this map was entitled to preclearance.

4. To the extent that the district court did noterr in construing Section 5, whether the 2006reauthorization of Section 5, as so construed, isconstitutional.


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LIST OF PARTIES TO THE PROCEEDING Appellant is the State of Texas. Appellees are

the United States and Attorney General Eric H.Holder, Jr., in his official capacity.

Intervenor-defendant-appellees are WendyDavis, Marc Veasey, John Jenkins, Vicki Bargas,Romeo Munoz, Mexican American Legal Caucus of the Texas House of Representatives, Greg Gonzales,Lisa Aguilar, Daniel Lucio, Victor Garza, BlancaGarcia, Josephine Martinez, Katrina Torres, Nina JoBaker, Texas Legislative Black Caucus, Texas LatinoRedistricting Task Force, Texas State Conference of NAACP Branches, Juanita Wallace, Bill Lawson,Howard Jefferson, Ericka Cain, Nelson Linder,Reginald Lillie, and League of United Latin

American Citizens. The Texas Democratic Party,Boyd Richie, and Michael Idrogo sought to intervene,but the district court denied their motions.


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TABLE OF CONTENTSQUESTIONS PRESENTED ........................................ i

LIST OF PARTIES TO THEPROCEEDING ..................................................... ii

TABLE OF CONTENTS ........................................... iii

TABLE OF AUTHORITES ........................................ vi

JURISDICTIONAL STATEMENT ............................. 1

OPINIONS BELOW .................................................... 1

JURISDICTION .......................................................... 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ................................... 1

INTRODUCTION ........................................................ 1

STATEMENT OF THE CASE .................................... 5

A. The Voting Rights Act ................................... 5

B. Texas Redistricting Process .......................... 7

C. Texas Preclearance Suit ............................... 8

D. The District Courts Decision ........................ 9

THE QUESTIONS PRESENTED ARESUBSTANTIAL ................................................... 12

I. THE D ISTRICT COURT E RRED BY A PPLYING E RRONEOUS LEGALS TANDARDS FOR RETROGRESSIVEE FFECTS THAT E XACERBATE S ECTION5S CONSTITUTIONAL D IFFICULTIES ...................... 12

A. The District Court ErroneouslyFaulted Texas for Departures fromProportional Representation ....................... 12


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APPENDIXTABLE OF APPENDICES ........................................... i

Appendix A

Memorandum Opinion of the UnitedStates District Court for the District of Columbia, No. 11-1303(August 28, 2012),as amended Aug. 30, 2012 ........................... App-1

Appendix B

Memorandum Opinion of the UnitedStates District Court for the District of Columbia, No. 11-1303(December 22, 2011) ................................ App-282

Appendix C

Notice of Appeal to the Supreme Court of the United States From a Judgment of aDistrict Court, No. 11-1303(August 31, 2012) ..................................... App-342

Appendix DU.S. Const., Amend. XIV ......................... App-344

Relevant Statute ...................................... App-346

42 U.S.C. 1973c .............................. App-346


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TABLE OF AUTHORITESCases

Abrams v. Johnson ,521 U.S. 74 (1997) ................................... 2, 14, 15

Baird v. City of Indianapolis ,976 F.2d 357 (7th Cir. 1992) ............................. 20

City of Mobile v. Bolden ,446 U.S. 55 (1980) ............................................. 29

Commrs Ct. of Medina Cnty. v. United States ,683 F.2d 435 (D.C. Cir. 1982) ........................... 37

Easley v. Cromartie ,532 U.S. 234 (2001) ........................................... 27

Elkins v. United States ,364 U.S. 206 (1960) ........................................... 32

Georgia v. Ashcroft ,539 U.S. 461 (2003) ........................... 6, 17, 34, 36

Growe v. Emison ,507 U.S. 25 (1993) ............................................. 22

Hunt v. Cromartie ,526 U.S. 541 (1999) ........................................... 28

Johnson v. DeGrandy ,512 U.S. 997 (1994) ..........................14, 15, 20, 25

LULAC v. Midland School Dist. ,812 F.2d 1494 (5th Cir. 1987) ........................... 20

LULAC v. Perry ,548 U.S. 399 (2006) ........................................... 15

Miller v. Johnson ,515 U.S. 900 (1995) ................................. 3, 17, 21


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Morris v. Gressette ,432 U.S. 491 (1977) ..................................... 35, 36

Northwest Austin Mun. Util. Dist. No. One v. Holder ,129 S.Ct. 2504 (2009) .......................... 5, 6, 28, 31

Patterson v. New York ,432 U.S. 197 (1977) ........................................... 32

Perry v. Perez ,132 S. Ct. 934 (2012) ..................................... 9, 19

Pers. Admr of Mass. v. Feeney ,442 U.S. 256 (1979) ........................................... 28

Reno v. Bossier Parish School Bd. ,520 U.S. 471 (1997) ..................................... 15, 16

Reno v. Bossier Parish School Board ,528 U.S. 320 (2000) .................................... passim

Shaw v. Reno ,509 U.S. 630 (1993) ........................................... 25

Shelby County v. Holder ,

679 F.3d 848 (D.C. Cir. 2012) ........................... 32South Carolina v. United States ,

No. 12-cv-203 (D.D.C.) ....................................... 37

Thornburg v. Gingles ,478 U.S. 30 (1986) ............................................. 19

Statutes

42 U.S.C. 1973 ....................................................... 13

42 U.S.C. 1973c ............................................... passim

Rule Fed. R. Civ. P. 8(b) .................................................... 35


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Other Authority H.R. Rep. No. 109-478 (2006) ................................... 32


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JURISDICTIONAL STATEMENT Appellant State of Texas respectfully submits

this jurisdictional statement regarding its appeal of adecision from a three-judge panel of the U.S. DistrictCourt for the District of Columbia.

OPINIONS BELOW

The district courts opinion denying preclearanceis reproduced at App.1281, and the courts opiniondenying Texas motion for summary judgment isreproduced at App.282341.

JURISDICTION

This is an appeal from the decision of a three- judge district court denying preclearance of Texaslegislatively enacted redistricting plans. The districtcourt entered final judgment on August 28, 2012, andTexas filed a timely notice of appeal on August 31,2012. App.342. This Court has jurisdiction under 28U.S.C. 1253.

CONSTITUTIONAL AND STATUTORYPROVISIONS INVOLVED

The Fourteenth Amendment to the U.S.Constitution and Section 5 of the Voting Rights Act(VRA), 42 U.S.C. 1973c, are reproduced in theappendix to this brief at App.344-48.

INTRODUCTION

In the decision below, a three-judge district courtin Washington, D.C., held that Texas legislativelyenacted redistricting plans for the U.S. House, Texas

House, and Texas Senate were not entitled topreclearance under Section 5 of the Voting Rights


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Act. The district courts opinion contains a number of serious structural errors that infect its analysis of both the purpose and effect prongs of Section 5and push Section 5 past the constitutional breakingpoint.

First , the district court erred by faulting Texasfor departing too much from proportionalrepresentation. The district court found the newcongressional plan to be retrogressive because itincreased the so-called representation gap, which

the court defined as the difference between the actualnumber of minority districts and the number of minority districts that racially proportionalrepresentation would yield. But the VRA explicitlydisclaims any proportionality requirement, and thisCourt rejected such an analysis in Abrams v.Johnson , 521 U.S. 74, 97-98 (1997). The courtsrepresentation gap analysis also aggravates theconstitutional difficulties with Section 5 bymandating that a covered jurisdiction elevate raceabove all other considerations once the gap crossesa certain numerical threshold. See Miller v. Johnson ,515 U.S. 900, 917 (1995).

Second , the district court concluded that thelegislatively enacted plans for the U.S. House andTexas House had a retrogressive effect because theyfailed to preserve certain coalition or crossoverdistricts. But Section 5 only protects districts inwhich a minority group has the ability . . . to elect[its] preferred candidate[] of choice. 42 U.S.C. 1973c(b), (d). In a coalition or crossover district, no

single group has the ability to elect its favoredcandidate without assistance from other groups.


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This Court has already held that a States failure tocreate a crossover district does not violate Section 2,see Bartlett v. Strickland , 556 U.S. 1, 13-15 (2009),and there is no reason for a different result in theSection 5 context.

A holding that coalition and crossover districtsare protected by Section 5 would deepen Section 5sconstitutional problems by making race the primaryfocus of the redistricting process. States would notonly have to divvy up voters on the basis of race, but

would also have to make complicated judgments(both forward-looking and backward-looking) aboutthe interaction between different racial groups. Thissordid business has no proper place in a statutedesigned to promote a political system in which raceno longer matters. Miller , 515 U.S. at 912 .

Third , the district court erred by finding that thecongressional and state senate plans were motivatedby a discriminatory purpose, even though it foundno direct evidence of such a purpose. App.51-52,61. The district court demanded that Texas prove theabsence of any discriminatory purpose, and relied ona hodgepodge of circumstantial evidence thatreflected, at most, a focus on party, not race.Moreover, the courts impermissible purpose findingwas based on Congress 2006 reauthorization of Section 5, which sought to abrogate this Courtsdecision in Reno v. Bossier Parish School Board , 528U.S. 320 (2000). The district courts decision amplyillustrates and reintroduces the constitutionalproblems that this Court sought to avoid in Bossier

Parish II .


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Fourth , the district court allowed a number of individuals and interest groups to interveneevenallowing them to challenge the Texas Senate plan,which the Department of Justice (DOJ) concededcomplied with Section 5. Intervention multiplies thesignificant monetary and sovereignty costs exactedby the preclearance mechanism, by compounding theburdens of discovery, motions practice, experttestimony, and trial. It is also unnecessary in light of the remedies provided to private parties underSection 2 and the Constitution. Permitting privateintervenors to displace DOJ as the enforcers of Section 5 drastically expands these federalism costs,by forcing States to disprove theories that DOJ hasfound to be meritless.

Fifth, this Court has recognized that Section 5raises grave constitutional doubts, both bymandating the consideration of race and invertingthe normal assumptions that state laws arepresumptively constitutional and all States enjoyequal footing as sovereigns. The 2006reauthorization of Section 5 raises additionalconstitutional concerns by renewing the statute for25 years and overturning decisions of this Courtdesigned to ameliorate Section 5s constitutionaldifficulties. The decision below exacerbates theseconstitutional difficulties at every turn by applyinglegal tests that maximize, rather than minimize, theinterference with state sovereignty and the need forStates to take race into account in order to obtainpreclearance.

* * *


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This Court has been asked several times inrecent years to reconsider the facial constitutionalityof Section 5. See Northwest Austin Mun. Util. Dist.No. One v. Holder , 129 S.Ct. 2504, 2509 (2009);Shelby County v. Holder , No. 12-96; Nix v. Holder ,No. 12-81. Those cases raise critically importantissues about Section 5, but they do not directlyillustrate the burdens of the preclearance process.This case is different. It demonstrates the acutefederalism costs when Section 5 is invoked to preventa State from implementing changes to its electoralmaps necessitated by population growth. Therequirements of the Constitution and Section 2ensure the absence of unconstitutional considerationof race. In contrast, the requirements of Section 5,especially as interpreted by the district court,virtually mandate an obsession with race andguarantee unprecedented intrusions into statesovereignty.

The decision below clearly merits this Courtsreview in its own right and would complement otherSection 5 cases by showing the difficulties with thepractical administration of the statute asreauthorized in 2006. The Court should noteprobable jurisdiction and set this case for oralargument this Term so that Texas can implement itslegislatively enacted plans for the next electoralcycle.

STATEMENT OF THE CASE

A. The Voting Rights Act

Texas is a covered jurisdiction subject toSection 5 of the Voting Rights Act of 1965 (VRA), 42


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U.S.C. 1973c. For covered jurisdictions, Section 5reverses the normal rule that a duly enacted lawtakes immediate effect by suspending all changes instate election procedure until they are submitted toand approved by a three-judge Federal District Courtin Washington, D.C., or the Attorney General.Northwest Austin , 129 S.Ct. at 2509. To obtainpreclearance, a covered jurisdiction must show thatthe voting change neither has the purpose nor willhave the effect of denying or abridging the right tovote on account of race or color, or because of onesmembership in a language minority group. 42U.S.C. 1973c(a).

Although Section 5 was originally conceived of asan emergency provision authorized only as atemporary measure for five or seven years, asCongress has gotten further removed in time fromthe events that initially precipitated Section 5, it hasreauthorized the law for substantially longer periods.In 2006, Congress reauthorized Section 5 for anadditional twenty-five years and purported toabrogate this Courts decisions in Georgia v. Ashcroft ,539 U.S. 461 (2003), and Reno v. Bossier ParishSchool Board , 528 U.S. 320 (2000) ( Bossier ParishII ), both of which relied on the canon of constitutional avoidance.

Georgia held that the retrogression inquiry is notfocus[ed] solely on the comparative ability of aminority group to elect a candidate of its choice. 539U.S. at 480. Any other holding would likely violatethe Equal Protection Clause by making racial

considerations the predominant factor inredistricting by covered jurisdictions. Id . at 491-92


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(Kennedy, J., concurring). Congress neverthelesssought to overrule Georgia by providing that Section5 protects the ability . . . to elect. 42 U.S.C. 1973c(b); see id. 1973c(d).

In Bossier Parish II , this Court held that Section5s purpose prong prohibits only retrogressive purposes. 528 U.S. at 336. The Court warned thatconstruing Section 5 to reach any discriminatorypurpose, including those unrelated to retrogression,would exacerbate the substantial federalism costs

that the preclearance procedure already exacts,perhaps to the extent of raising concerns about[Section] 5s constitutionality. Id. (citation omitted).

Yet Congress overruled Bossier Parish II in the 2006reauthorization by providing that Section 5s purposeprong shall include any discriminatory purpose,regardless of whether that purpose is retrogressive.42 U.S.C. 1973c(c) (emphasis added).

B. Texas Redistricting Process

Texas enjoyed remarkable population growth in

the last decade. The 2010 census revealed thatTexas total population had grown by nearly 4.3million people, to 25,145,561. Based on thatincrease, Texas was apportioned four additional seatsin the U.S. House of Representatives, for a total of 36seats.

The Legislature moved quickly to pass newredistricting plans. In the House, leadership andstaff held several meetings with House membersfrom both parties, and with groups that represent

minority interests, such as the Mexican AmericanLegal Defense and Education Fund and the Mexican


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American Legislative Caucus. In the Texas Senate,the Redistricting Committee also conducted proactiveoutreach with interested parties, including outsidegroups. Both the House and Senate released theirproposed plans to the public and held multiplehearings on those plans. The new maps for the TexasHouse and Senate were signed into law in June 2011,and the plan for the U.S. House was signed into lawin July 2011.

C. Texas Preclearance Suit

One day after the congressional plan was signedinto law, Texas formally sought judicial preclearancefrom a three-judge district court in Washington, D.C.To facilitate the preclearance process, Texasvoluntarily provided tens of thousands of pages of information to DOJ about its plans and coordinatednumerous interviews of state officials. Two dozenindividuals and interest groups also intervened inthe Section 5 case (over Texas objection) and soughtextensive discovery of their own.

Texas moved for summary judgment on both thepurpose and effect prongs of Section 5. The Stateproposed a retrogression test that would haveallowed a clear and straightforward comparison of the districts in the benchmark plans and enactedplans. Prospectively, Texas proposed standardwould have given covered jurisdictions relativelyclear guidance as to whether their plans raisedSection 5 concerns. But the district court rejectedTexas proposed standard, denied summary

judgment, and set the case for trial. App.312-18.


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Between the district courts denial of summary judgment and the end of trial, this Court reviewedand vacated interim maps adopted by a differentthree-judge district court in the Western District of Texas. See Perry v. Perez , 132 S. Ct. 934 (2012). TheTexas district court subsequently adopted newinterim maps that will be used for the 2012 electioncycle while the preclearance claims are beinglitigated.

D. The District Courts Decision

Following additional discovery, a two-week trial,and extensive briefing, the district court deniedpreclearance for all three of Texass redistrictingplans. The courts decision explicitly turned onCongress 2006 changes to Section 5. It stressed that[i]n the most recent reauthorization of the VRA,Congress further reinforced the meaning of the effectprong by stating that minority voters ability to electtheir candidates of choice is the appropriate measureof whether a proposed change will be retrogressive.

App.7. The court also emphasized that [i]n directresponse to this Courts holding in Bossier Parish II ,the 2006 amendments to section 5 clarified that theterm purpose must be read more broadly andincludes any discriminatory purpose. App.33-34.

Discriminatory Effect. Having rejected Texasbright-line retrogression standard, the district courtemployed a multi-factored, functional analysis to

judge retrogression. App.8. This analysis vieweddistricts with over 65% minority voting agepopulation as presumptive ability districts, treatedsome (but not all) cross-over and coalition districts asability districts, and relied on a host of other factors


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including an open-ended list of endogenous andexogenous election results, App.10-29, and whetheran enacted plan contains the same relativeproportion of ability districts, App.45-51.

This functional analysis led the district court toconclude that Texass congressional and state houseplans retrogress. The court held that Texascongressional plan retrogressed because it failed tocreate at least one additional minority congressionaldistrict in response to population growth. App.45-46.

The court reasoned that Section 5 required the Stateto create an additional minority district to maintainthe same proportion of minority districts as thebenchmark plan. App.48-51. Under the districtcourts standard, a congressional plan that containsthe same number of minority ability districts as thebenchmark could violate Section 5 if it failed toearmark newly apportioned seats for racialminorities. Id. 1 Indeed, Texas standard showed thatthe enacted plan actually increased the number of ability districts. App.303-04.

Turning to the Texas House, the court held thatthe States enacted plan eliminated four minority

1 The court found that CD 23 was a protected district eventhough it elected the Hispanic-preferred candidate less thanhalf of the time, and found that it was not an ability district inthe enacted plan even though its HCVAP increased . App.39-45.Two judges also held that CD 25 was a protected abilitydistrict, App.99-100, based on a tri-ethnic coalition of Anglos,Blacks, and Hispanics who voted together in general elections toelect a white Democrat. Without these findings, therepresentation gap would not have increased.


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districts. App.69. But two of those districtsHD 35and HD 117remained majority-Hispanic, and weredeemed lost solely because they are now more likelyto reelect the incumbent Republicans (who are bothLatino). Another lost district is an allegedcoalition district composed of Asian-American, Black,and Hispanic voters who do not vote cohesively inprimaries. App.83, 87. The last district, HD 33, wasan unavoidable loss because Texas complied with thecounty-line provision in its constitution. Tex. Const. art. III, 26. And the district court refused toconsider whether these purported losses were offsetby three other districts whose minority votingstrength was increased compared to the benchmark.

App.90-95.

Discriminatory Purpose. Texas introduceddirect evidence showing that the Legislatures planswere intended to adhere to traditional redistrictingprinciples, comply with the VRA, and achievepolitical advantage within permitted legal limits.

And the district court found no direct evidence to thecontrary. App.51-52, 61. The court nevertheless heldbased on a smattering of circumstantial evidencethat the congressional and state senate plans wereenacted for discriminatory (but not retrogressive)purposes.

For the congressional plan, the court relied onevidence regarding the removal of economicgenerators from black Democrats congressionaldistricts, App.53-56, the States history of redistricting litigation, App.55-56, allegations that

legislative opponents were excluded from theredistricting process, App.56, and purported


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differences from past decades procedures, App.56-57.For the state senate plan, the court focused on theplans disparate impact on minorities around SD 10;testimony alleging that the legislature rebuffed theconcerns of Senator Wendy Davis, an AngloDemocrat and SD 10s incumbent; and complaints byDemocratic senators that they were excluded fromthe process. App.61-68. 2

THE QUESTIONS PRESENTED ARESUBSTANTIAL

I. T HE D ISTRICT C OURT E RRED BY A PPLYINGE RRONEOUS L EGAL S TANDARDS FORR ETROGRESSIVE E FFECTS T HAT E XACERBATES ECTION 5S C ONSTITUTIONAL D IFFICULTIES

The district courts denial of preclearance wasbased on a series of unprecedented applications of Section 5s effects test, each of which finds nosupport in the text of the statute and wouldsubstantially exacerbate the already-seriousconstitutional difficulties with Section 5.

A. The District Court Erroneously FaultedTexas for Departures from ProportionalRepresentation

1. The district court held that Texaslegislatively enacted congressional plan had aretrogressive effect because it departed too much

2 The court found that the state senate plan did not have aretrogressive effect. App.58-61.


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from proportional representation. App.45-51.3

Thatholding was based on the district courts so-calledrepresentation gap analysis, which is little morethan an assessment of proportionality. The courtdefined the representation gap as the differencebetween the number of [minority] districts

proportional representation would yield and thenumber of [minority] districts the legislature actuallycreated. App.48 (emphasis added). The court thencompared the representation gap in the benchmarkcongressional plan to the representation gap in thenew plan, and deemed the new plan retrogressivebecause the gap had increased by a single majority-minority district. Id. 4

This novel gloss on Section 5s effects test hasno basis in the text or structure of the VRA. In fact,it is expressly prohibited by Section 2 of the VRA,which provides that nothing in this sectionestablishes a right to have members of a protectedclass elected in numbers equal to their proportion inthe population. 42 U.S.C. 1973(b). Although thedistrict court denied that it was applying aproportionality test, the clear effect of the courts

3 This holding was a reversal from the courts summary judgment opinion, in which it concluded that Section 5 islimited to preventing states from undoing or defeating therights recently won by minorities . . . it does not require statesto . . . create new minority districts in proportion to increases inthe minority groups population. App.334.

4 Only Judges Griffith and Howell joined this section of thecourts opinion. App.45 n.22.


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analysis is that States will be found to haveretrogressed if they do not add new majority-minoritydistricts whenever they experience sufficientpopulation growth. See App.48 (When therepresentation gap grows, the degree of discrimination grows.). 5

This Court has expressly rejected previousattempts to incorporate proportionality into theSection 5 standard. In Abrams v. Johnson , 521 U.S.74, 97-98 (1997), Georgia received one new

congressional seat in the 1990 redistricting, and theappellants asserted that Section 5 required Georgiato draw that new district as a majority-minority seat.In particular, the appellants argued that Georgiasplan retrogressed because under the 1982 plan 1 of the 10 districts (10%) was majority black, whileunder the [new] plan 1 of 11 districts (9%) is majorityblack, and therefore blacks do not have the sameelectoral opportunities under the [new] plan. Id. at97. This Court squarely rejected that argument,noting that under the appellants logic, each time aState with a majority-minority district was allowedto add one new district because of population growth,it would have to be majority-minority. Id. at 97-98.This the Voting Rights Act does not require. Id. at

5 Although the district court insinuated that its analysiswas tied to minority population growth, a finding of retrogression under the representation gap theory is notdependent on minority population growth. See App.48-50.Rather, the courts analysis simply earmarks new majority-minority districts any time a State is apportioned enough newdistricts, regardless of minority population growth.


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98; see Johnson v. DeGrandy , 512 U.S. 997, 1026(1994) (OConnor, J., concurring) (noting that [l]ackof proportionality can never by itself prove dilution).

The district court attempted to distinguish Abrams on the ground that it involved only a singlenew district, and thus does not control in a situationwhere a State gains multiple seats. App.46-47.That is a distinction without a difference. It is truethat Georgia gained only one new seat after the 1990census, but the Court did not in any way suggest that

the outcome of Abrams would have been different if Georgia had gained two or three new seats instead of one. The core holding of Abrams is that a departurefrom proportional representation is not retrogressiveas long as the total number of majority-minoritydistricts does not decrease compared to thebenchmark plan. Abrams flatly rejected any rulethat would have required States to earmark newlyapportioned congressional seats for minority groupsbased on nothing more than population growth.521 U.S. at 97-98.

The district courts decision is also contrary tothe structure of the VRA. It is Section 2, not Section5, that is used to determine whether additional majority-minority districts need to be drawn inresponse to demographic changes; Section 5 onlyprotects against retrogression. See LULAC v. Perry ,548 U.S. 399, 436-42 (2006) (analyzing alleged votedilution under Section 2); Johnson v. De Grandy , 512U.S. 997, 1000 (1994). This Court has repeatedlyemphasized that Section 2 and Section 5 combat

different evils and impose very different dutiesupon the States. Reno v. Bossier Parish School Bd. ,


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520 U.S. 471, 477 (1997) ( Bossier Parish I ). In Bossier Parish I , this Court rejected the argumentthat a violation of 2 is an independent reason todeny preclearance under 5. 520 U.S. at 477. Anysuch rule would inevitably make compliance with 5 contingent upon compliance with 2, and wouldeffectively replace the standards for 5 with thosefor 2. Id.

The district court clearly erred in conflating theSection 2 and Section 5 inquiries. The court

expressly relied on Section 2 cases, see App.47-48,and noted that its analysis was subject to the caveatthat a State is only required to draw a new district if possible, i.e. , if it can draw a new ability districtwithout violating . . . the demands of section 2,

App.50 n.28. Put simply, the district court forcedTexas to affirmatively disprove a Section 2 votedilution claim in order to receive preclearance underSection 5, despite this Courts holding thatpreclearance is not contingent upon compliance with 2. Bossier Parish I , 520 U.S. at 477. 6

2. The district courts representation gapanalysis also raises serious constitutional concerns

6 Even though the district court limited its holding tosituations in which a new district would be required underSection 2, it did not analyze whether Texas new maps actuallyviolated Section 2. The court merely asserted that Section 2will not be an issue here. App.50 n.28. And, although thedistrict courts test purports to examine the relationshipbetween a minority groups share of CVAP statewide and thenumber of opportunity districts, App.47, it omits anyconsideration of Asian-Americans or other minority groups.


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by forcing covered jurisdictions to set aside newcongressional seats as majority-minority districtswhenever the gap crosses a certain numericalthreshold.

The Equal Protection Clause bars States fromadopting redistricting plans in which race was thepredominant factor motivating the drawing of certain districts because [r]acial gerrymandering,even for remedial purposes . . . threatens to carry usfurther from the goal of a political system in which

race no longer mattersa goal that the Fourteenthand Fifteenth Amendments embody, and to whichthe Nation continues to aspire. Miller , 515 U.S. at912 (citation omitted); see Georgia , 539 U.S. at 491(Kennedy, J., concurring) (criticizing regime in whichconsiderations of race that would doom aredistricting plan under the Fourteenth Amendmentor 2 seem to be what save it under 5).

But that is exactly what the district courtsanalysis requires. The representation gap analysismandates that once the gap becomes large enough,a jurisdiction must add new race-based districts,regardless of traditional race-neutral districtingprinciples, such as compactness, contiguity, andrespect for political subdivisions or communitiesdefined by actual shared interests. Miller , 515 U.S.at 916. Any interpretation of Section 5 that forcesStates to elevate race above all other considerationsonce an arbitrary numerical threshold is crossed


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cannot be squared with the Equal Protection Clauseand should be rejected. 7

B. The District Court Erred in Requiringthe Protection of Coalition andCrossover Districts

The district court further erred by concludingthat coalition and crossover districts are protectedby Section 5, even though no single minority grouphas the ability to elect its candidate of choice in thosedistricts. App.24-33. In a crossover district, aminority group must work together with white votersto elect the groups candidate of choice. In a coalitiondistrict, two or more minority groups must worktogether to elect the groups preferred candidate.Finding such districts to be protected by Section 5disregards the VRAs text and this Courts

jurisprudence, and would further exacerbate theconstitutional defects of Section 5.

1. Section 5 protects the ability . . . to elect.42 U.S.C. 1973c(b); see id. 1973c(d) (purpose of

Section 5 is to protect the ability of [minority]citizens to elect their preferred candidates of choice(emphasis added)). A coalition or crossover districtis, by definition, a district in which a particularminority group lacks the ability . . . to elect itspreferred candidate of choice without assistance fromother voters. The candidate who ultimately prevails

7 Had the court employed the bright-line test that Texasproposed, see infra Part I.C, it would have concluded that therepresentation gap actually decreased compared to thebenchmark. See App.303-04.


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is the preferred choice of the coalition as a whole.Unless the coalition voted cohesively for the samecandidate in the primary election, it certainly cannotbe said that each group is able to elect its preferredcandidate of choice, as opposed to a compromisecandidate. The plain text of the VRA thus makesclear that the statute does not protect coalition andcrossover districts.

This Court has not specifically addressedcoalition and crossover districts in the Section 5

context, but its decisions in Section 2 cases areillustrative and should have held sway before thedistrict court. The Court has held that the VRA requires creation of a minority district only when,inter alia , the group claiming vote dilution issufficiently large and geographically compact toconstitute a majority in a single-member district that is politically cohesive. Thornburg v. Gingles ,478 U.S. 30, 50-51 (1986) (emphasis added).

This Court has held that it would be contrary tothe mandate of the VRA to recognize a vote dilutionclaim based on a States failure to create a crossoverdistrict. Bartlett v. Strickland , 556 U.S. 1, 14 (2009).That is because the VRA simply does not grant[]special protection to a minority groups right to formpolitical coalitions. Id. at 15. In a crossover district,a minority group has the opportunity to join othervotersincluding other racial minorities, or whites,or bothto reach a majority and elect their preferredcandidate. Id. at 14. But the group cannot elect


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that candidate based on their own votes and withoutassistance from others. Id. 8

This Court also held in Perry v. Perez , 132 S. Ct.934, 944 (2012), that a district court lacks remedialauthority to draw a race-based coalition district inresponse to either a Section 2 or Section 5 violation.It would make little sense to forbid courts fromdrawing coalition districts in response to a Section 5violation but require States to draw such districts toavoid a Section 5 violation.

The driving force in a coalition or crossoverdistrict is politics , not race. Granting protectedstatus to such districts thus poses a serious risk thatephemeral political alliances having little or nonecessary connection to discrimination will beconfused with cohesive political units joined by acommon disability of chronic bigotry. LULAC v.Midland School Dist. , 812 F.2d 1494, 1504 (5th Cir.1987) (Higginbotham, J., dissenting); see also Bairdv. City of Indianapolis , 976 F.2d 357, 361 (7th Cir.

1992) (VRA is a balm for racial minorities, notpolitical oneseven though the two oftencoincide . . .). When a minority group does notcomprise a majority of a single-member district,nothing in Section 5 immunizes that group from theobligation to pull, haul, and trade to find commonpolitical ground, the virtue of which is not to beslighted in applying a statute meant to hasten the

8 Bartlett did not address coalition districts, 556 U.S. at 13-14, but the Courts reasoning is equally applicable to thosedistricts.


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waning of racism in American politics. DeGrandy ,512 U.S. at 1020.

The flaws of the district courts approach are bestillustrated by its treatment of District 25 in thecongressional plan. Judges Howell and Collyerconcluded that District 25 was a protected crossoverdistrict, see App.99-100, even though minoritiescomprised only 36% of the citizen voting agepopulation. Indeed, available data indicate thatminority voters cast a mere 10% of the ballots in

District 25 in the 2010 election, and 18% of ballots in2008. App.137-38. Minority voters thus had noability whatsoever to elect their preferred candidateof choice. Instead, they simply voted as a bloc in thegeneral election for the (white) Democrat who hadrepresented that district for many years. But, asJudge Griffith explained, a district does not attainprotected status merely because minority votersprovide[] the margin of victory in a competitiveDemocratic district. App.141. 9

2. Interpreting Section 5 to protect coalition andcrossover districts would exacerbate theconstitutional difficulties of the statute bysignificantly increasing the extent to whichredistricting decisions turn on racial considerations.

As this Court explained, recognition of claims basedon a States refusal to create a crossover districtwould place courts in the untenable position of

9 The district courts erroneous holding that coalition andcrossover districts were protected by Section 5 also infected itsanalysis of the Texas House map. App.83-89.


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predicting many political variables and tying them torace-based assumptions. Bartlett , 556 U.S. at 17.

Such a holding would demand the very racialstereotyping the Fourteenth Amendment forbids,Miller , 515 U.S. at 927-28, by forcing covered

jurisdictions both to classify voters by race and tomake predictions about how different racial groupswill vote in the future. And, because there is noeasily administrable standard for identifyingcoalition and crossover districts, map-drawers would

have little guidance about how to avoid Section 5violations, and preclearance cases would inevitablybecome bogged down in dueling expert testimony (asthis case did).

* * *

For these reasons, the Court should hold that acovered jurisdictions failure to maintain a coalitionor crossover district does not violate Section 5. At aminimum, however, the Court should establish abright-line rule that a coalition or crossover district is

not protected by Section 5 unless the groups thatcomprise the coalition vote cohesively in primaryelections. Cf. Growe v. Emison , 507 U.S. 25, 41(1993) (holding that proof of minority politicalcohesion is all the more essential when the allegedvote dilution is based on an agglomerated politicalbloc). Merely requiring political cohesion in thegeneral election is insufficient, because it does notdistinguish between minority groups withoverlapping political affiliations. If the groupscomprising an alleged coalition do not vote cohesivelyin the primary, this should be conclusive evidence


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that the coalition is actually based on politicsrather than race, and is not protected by Section 5. 10

C. The District Court Should HaveEmployed a Bright-Line Test forRetrogressive Effects Rather Than a

Vague and Indeterminate Functional Analysis

Texas offered a bright-line test for analyzingretrogressive effect that looks solely to minoritydemographics in the benchmark plan and the newplan. Section 5 should be interpreted to protect onlythose districts where a single minority groupconstitutes 50% or more of the voting age population.For Latino-majority districts, it is appropriate toconsider citizen voting age population (CVAP) toensure that only individuals who are eligible to voteare included in the analysis. See LULAC , 548 U.S. at441 (relying on CVAP, rather than VAP, for Latino-majority districts).

Consistent with the text of Section 5, this test

would accurately identify districts in which aminority group has the ability ( i.e. , opportunity) toelect its preferred candidate, without assistance fromother groups. 42 U.S.C. 1973c(a). It would also

10 The evidence in the Section 2 trial unequivocallydemonstrated that the groups comprising the purportedcoalitions in Texas do not vote cohesively in the primaries. SeeTrial Tr. at 265 (Latinos and African Americans are notcohesive in Democratic primaries); id . at 506-08 (plaintiffsexpert stating that African-Americans are the least likelygroup to support Latinos in a Democratic primary).


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provide an administrable standard that covered jurisdictions could apply to knowrather thanguessthat a proposed plan was consistent withSection 5.

As this Court has explained, a majority-minorityrequirement has its foundation in principles of democratic governance because it is a special wrongwhen a minority group has 50 percent or more of thevoting population and could constitute a compactvoting majority but, despite racially polarized bloc

voting, that group is not put into a district. Bartlett ,556 U.S. at 19 (emphasis added). A bright-line 50%rule would also be a workable standard that drawsclear lines for courts and legislatures alike, id. at 17,thus minimizing the inherent constitutional burdensof Section 5 on covered jurisdictions. If Section 5 cancontinue to operate without imposing untenablesovereignty costs, the need for a bright-line rule thatavoids obvious retrogression while leaving a role forSection 2 litigation is imperative.

The district court nonetheless rejected Texaseasily administrable rule in favor of a multi-factoredfunctional analysis. App.8. 11 The court admittedthat its analysis provides no clear guidance tocovered jurisdictions because it does not lend itself

11 After the court rejected Texas objective standard, theState presented its own statewide functional analysis at trial.The court erred by not adopting that analysis for severalreasons, but primarily because itunlike the functionalanalysis adopted by the district courtdoes not turn onpinpointing the indeterminate point at which a districtperforms or ceases to perform electorally.


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to a formalistic inquiry and can rarely be measuredby a simple statistical yardstick. App.340.

The district courts analysis also erroneouslyfocused on political outcomes rather than ability .Section 5 protects only a groups ability to elect itspreferred candidate. 42 U.S.C. 1973c(a). Thedistrict court departed from the text and changed theanalysis in a subtle but critical way by assessingwhether minority groups had a demonstrated abilityto elect their candidate of choice. App.28, 39, 84

(emphasis added).This change flips the VRA on its head. It is well-

established that the VRA protects equality of opportunity, and is not a guarantee of electoralsuccess for minority-preferred candidates of whateverrace. DeGrandy , 512 U.S. at 1014 n.11. If aminority group comprises more than 50% of thevoting age population of a district, then itunquestionably has the ability to elect its candidateof choice. Section 5 does not mandate that Statesalso reverse-engineer those districts to guarantee aparticular outcome.

The district courts analysis also requires covered jurisdictions and courts to engage in the patronizingand constitutionally dubious process of identifying aminority groups preferred candidate of choice.That inquiry perpetuate[s] stereotypical notionsabout members of the same racial groupthat theythink alike, share the same political interests, andprefer the same candidates, thus exacerbat[ing] thevery patterns of racial bloc voting that majority-minority districting is sometimes said to counteract.Shaw v. Reno , 509 U.S. 630, 631 (1993). It is also


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empirically false. Indeed, several of the disputeddistricts are areas in which the Legislature sought toprotect the seats of Latino Republicans . App.76 (Rep.Pena); App.82 (Rep. Garza). These changes havenothing to do with race and everything to do withpolitics.

In the same way, the district courts analysis alsorequires covered jurisdictions and courts to obsessover registration and turnout patterns, without ever

justifying why such a burden is warranted. See

App.320-21 ([A] section 5 analysis must go beyondmere population data to include factors such asminority voter registration, [and] minority voterturnout.). That focus is particularly hard to justifyin the wake of this Courts observations that [v]oterturnout and registration rates now approach parityand that the racial gap in voter registration andturnout is lower in States originally covered by 5than it is nationwide. Northwest Austin , 557 U.S. at203.

* * *

In sum, Texas offered an easily administrableretrogression standard that complies with the textand purpose of the VRA, provides clear guidance tomap-drawers, and minimizes the inherentconstitutional difficulties with Section 5. The districtcourt, in contrast, insisted upon an amorphoustotality-of-the-circumstances test that provides nomeaningful guidance to covered jurisdictions,increases the role race will play in the redistrictingprocess, and makes electoral success not abilityforminority-preferred candidates the relevant


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consideration. That test exacerbates the inherentburdens and constitutional difficulties with Section 5.

II. T HE D ISTRICT C OURT E RRED BY C ONCLUDINGT HAT THE P LANS W ERE E NACTED WITH A D ISCRIMINATORY P URPOSE

The district court erred by finding adiscriminatory purpose based on a handful of factualallegations that do not remotely reflect intentionaldiscrimination on the basis of race, let alone aspecific intent to retrogress. At most, those factsdemonstrate a partisan motivation, which isobviously not prohibited by the VRA.

Moreover, this case amply illustrates theconstitutional difficulty with Congress decision inthe 2006 reauthorization to override decisions of thisCourt that were designed to ameliorate theconstitutional difficulties with Section 5s purposeprong. In Bossier Parish II , this Court held thatinterpreting Section 5 to prohibit discriminatory butnonretrogressive vote-dilutive purposes would raise

grave constitutional concerns by exacerbat[ing] thesubstantial federalism costs that the preclearanceprocedure already exacts. 528 U.S. at 336. Yet the2006 reauthorization purports to abrogate Bossier

Parish II and reintroduces the exact constitutionalflaws that this Court sought to avoid. The districtcourts finding of discriminatory purpose is based onthat unlawful standard and cannot stand.


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A. The District Court Erred by Finding aDiscriminatory Purpose Despite the Absence of Any Direct Evidence of Discrimination

This Court has emphasized that [c]aution isespecially appropriate before finding adiscriminatory purpose when the State hasarticulated a legitimate political explanation for itsdistricting decision, and the voting population is onein which race and political affiliation are highly

correlated. Easley v. Cromartie , 532 U.S. 234, 242(2001). That is, a jurisdiction may engage inconstitutional political gerrymandering, even if it sohappens that the most loyal Democrats happen to be[minority] Democrats and even if the State wereconscious of that fact. Hunt v. Cromartie , 526 U.S.541, 551 (1999); see Pers. Admr of Mass. v. Feeney ,442 U.S. 256, 279 (1979) (discriminatory purposerequires an action to be taken because of, not merelyin spite of, racial considerations).

The Texas Legislature drew new redistrictingplans to comply with the VRA, adhere to traditionalredistricting principles, and achieve politicaladvantage for the Republican Party. The Statepresented direct evidence confirming each of thesepurposes, see DN 201 at 20-29, and the district courtfound no direct evidence to the contrary, App.51-52,61. The district court nonetheless disregarded Texasstated and well-documented purposes based on an ad


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hoc assessment of the circumstances surroundingthe enactment of the plans. App.52. 12

Such indirect evidence is plainly insufficient tosupport a finding of a discriminatory purpose (andwould not suffice in a Section 2 suit with the burdenon the challenger). Much of this evidence consists of self-serving testimony from legislators in the politicalminority who opposed the new plans, and the factthat the Legislature did not adopt amendmentsoffered by those opponents. See App.53-56, 61-66.

The court also relied on decades-old judicial decisionsfinding discrimination, see App.55-56, despite thisCourts warning that [p]ast discrimination cannot,in the manner of original sin, condemn governmentalaction that is not itself unlawful, City of Mobile v.

Bolden , 446 U.S. 55, 74 (1980). And the district courtrelied on testimony from opponents of the Statesplans who complained that the legislative processwas insufficiently collaborative. App.66.

All of this evidence is equally consistentindeed,

more sowith Texas stated political motivations.Removing the economic engines from certaindistrictsthus reducing members ability to raisecampaign contributions and bring home the porkismore obviously explained as a partisan maneuver

12 This evidence was scant, despite a costly and time-consuming discovery process, which resulted in severeintrusion into sensitive areas of state and local policymaking,Northwest Austin , 557 U.S. at 202. Texas produced thisinformation even though much of it likely would have beensubject to the legislative or attorney-client privilege.


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rather than a racial one, especially in light of thecourts finding that these changes were notretrogressive. App.53-56. Similarly, the fact thatopponents of the new maps were not intimatelyinvolved in the drafting process and were unable toachieve passage of their proposed amendmentsreflects their minority status in politics, not race.

Most baffling of all is the district courts findingthat certain changes to a white Democrats district inthe Texas Senate mapas well as the fact that this

Senators complaints about her district wererebuffedwere attributable to race rather thanpolitics. App.61-68 (Sen. Wendy Davis). 13 Furtherconfirming its political, yet race-neutral, motivations,the Legislature went out of its way to protect thedistricts of several minority incumbents from theRepublican party. App. 76 (Rep. Pena); App. 82 (Rep.Garza).

In sum, the district courts finding of adiscriminatory purpose based on a hodgepodge of

circumstantial evidenceall of which is moreconsistent with a partisan, rather than racial,motivationwas both erroneous and illustrative of the problems with putting the burden of disproving aracial motivation on a sovereign State. The practicaland constitutional difficulties with such a reversedburden with respect to discriminatoryas opposed toretrogressiveintent were recognized by this Court

13 That holding was especially prejudicial, as it was the solebasis on which the district court denied preclearance of theSenate plan. App.58-61.


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in Bossier Parish II and disregarded by Congress inthe 2006 reauthorization. The district courts intentanalysis is flawed even as an application of the 2006reauthorization, but also underscores the wisdom of this Courts decision in Bossier Parish II .

B. The District Courts DecisionDemonstrates the Constitutional Flawswith Congress Decision to Override

Bossier Parish II in the 2006Reauthorization

In Bossier Parish II , this Court held that Section5s purpose prong forbids only an intent toaccomplish retrogressive dilution. 528 U.S. at 328.

As the Court explained, with respect to both thepurpose and effects prongs, Section 5 preventsnothing but backsliding, and preclearance under[Section] 5 affirms nothing but the absence of backsliding. Id. at 335. 14 The United States hadargued that Section 5 prohibits any raciallydiscriminatory purpose, not just the specific intent to

accomplish retrogression. But the Court squarelyrejected that position, noting that it would blur thedistinction between [Section] 2 and [Section] 5 andchang[e] the [Section] 5 benchmark from a

jurisdictions existing plan to a hypothetical,undiluted plan. Id. at 336 (citation omitted). The

14 This limited prophylactic scope is not merely a narrowunderstanding of the Acts history. To deny preclearance to aplan that is not retrogressive no matter how unconstitutionalit may be would risk leaving in effect a status quo that is evenworse. Bossier Parish II , 528 U.S. at 336.


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Court also cautioned that reversing the burden of proof and requiring a covered jurisdiction to carry theburden of proving the absence of any discriminatorypurpose would exacerbate the substantialfederalism costs that the preclearance processalready exacts . . ., perhaps to the extent of raisingconcerns about [Section] 5s constitutionality. Id. ;see also Northwest Austin , 129 S. Ct. at 2512.

Congress ignored those concerns, and the districtcourts decision demonstrates the wisdom of Bossier

Parish II . In the 2006 reauthorization of Section 5,Congress purported to abrogate Bossier Parish II byredefining purpose to include any discriminatorypurpose. 42 U.S.C. 1973c(c) (emphasis added).Congress purported to overturn this Courts statutorydecisions as if it were operating under an ordinarylegislative power, rather than pursuant to itsextraordinary and sensitive responsibilities underSection 2 of the Fifteenth Amendment and Section 5of the Fourteenth Amendment. See, e.g., H.R. Rep.No. 109-478, at 93 (Congress rejects the SupremeCourts holding in Reno v. Bossier Parish ). Congressthus reintroduced the very constitutional problemsthis Court sought to avoid. See Shelby County v.Holder , 679 F.3d 848, 888 (D.C. Cir. 2012) (Williams,J., dissenting).

The district courts decision amply demonstratesthe constitutional difficulties with forcing covered

jurisdictions not only to prove the absence of aretrogressive purpose, but to demonstrate theabsence of any racially discriminatory purpose.

First, the district court was explicit that the facts onwhich it relied in finding a discriminatory purpose


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are not retrogressive . App.53, 58 (emphasis added).But given the correlation between partisan votingpatterns and racewhich is less pronounced in partsof Texas than many other places, as demonstrated bythe legislative efforts to protect minorityRepublicansplacing a burden on a sovereign Stateto prove the absence of any discriminatory motivetakes Section 5s inherent intrusion into statesovereignty to anotherand unconstitutionallevel.It is never easy to prove a negative, Elkins v.United States , 364 U.S. 206, 218 (1960), and it isparticularly unfair to require a covered

jurisdictionespecially one composed of two separatelegislative bodies of over 181 individual memberstonegate a subjective mental state, see Patterson v.New York , 432 U.S. 197, n.13 (1977).

To the extent the 2006 reauthorization mandatesthe very same legal standard that this Court rejectedin Bossier Parish II , that standard isunconstitutional and cannot be used as the basis fordenying preclearance.

III. T HE T EXAS S ENATE P LAN IS E NTITLED TOP RECLEARANCE B ECAUSE DOJ H AS A DMITTEDT HAT IT C OMPLIES WITH S ECTION 5

DOJ conceded before the district court thatTexas is entitled to a declaratory judgmentgranting preclearance of the redistricting plan for theTexas Senate. DN 45 at 1, 8; see App.58. Thatshould have been the end of the matter. Instead,however, the district court allowed a number of intervenors to force Texas to litigate claims that DOJdid not deem worth pursuing. That holding was clearerror.


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This Court should hold that private parties haveneither standing nor a right of action to intervene ina judicial preclearance case to oppose preclearance especially when those intervenors seek to challenge avoting change that DOJ has found unobjectionable.

Maintaining judicial preclearance, as ameaningful alternative to administrativepreclearance, is necessary to minimize Section 5sinherent imposition on state sovereignty. Requiringa State to bring a declaratory judgment action to

allow its law to go into effect is a remarkabledeviation from the normal principles of federalismand equal sovereignty. Forcing a State to obtain theprior approval of a federal executive branch official with no judicial optionwould be far moreremarkable. For this reason, a covered jurisdictioncannot be penalized for seeking judicial preclearanceby forcing them to litigate against both DOJ anddozens of private parties. This Court should clarifythat private parties have neither standing nor a rightof action to challenge a States voting laws underSection 5especially where DOJ finds that the lawcomplies with Section 5. 15

A. Section 5 does not give any individual voteror group of voters the right to reside in a particulardistrict or elect their preferred candidates of choice.Rather, the Section 5 inquiry looks to the overall

15 The district court also allowed intervenors to challengethe States treatment of District 25 in the congressional plan,even though DOJ conceded that this district was not protectedby Section 5. App.123.


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effect of a redistricting plan. See Georgia , 539 U.S. at479 ([I]n examining whether the new plan isretrogressive, the inquiry must encompass the entirestatewide plan as a whole.). Because Section 5 doesnot confer any individual rights, no private party hasa claim under Section 5 that can provide the basisfor intervention under Rule 24(b)(1)(B). It is DOJssole prerogative to determine whether to take thevery serious step of interposing an objection to asovereign States duly enacted redistricting plan; asit should be given the unique federalism costsimposed by Section 5.

This Court has made clear that individuallitigants have no role to play when DOJ does notobject to a voting change and grants administrativepreclearance. As the Court explained, [t]heextraordinary remedy of postponing theimplementation of validly enacted state legislationwas to come to an end when the Attorney Generalfailed to interpose a timely objection based on acomplete submission. Morris v. Gressette , 432 U.S.491, 50405 (1977). Indeed, preserving judicialpreclearance as a meaningful alternative toadministrative preclearance demands as much.When administrative preclearance provides anexpedient alternative to judicial preclearance, itameliorates the constitutional burdens of Section 5.But if administrative preclearance were the onlypractical option for covered jurisdictions, that wouldexacerbate the constitutional difficulties inherent inSection 5. Allowing private parties to object to votingchanges in court to which DOJ does not objecteffectively forecloses judicial preclearance as a viable


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option and pushes Section 5 over the constitutionaledge.

Indeed, if anything, DOJs admission to a courtthat a plan is entitled to preclearance should carryeven more weight than the Attorney Generals failureto object to a change in the administrativepreclearance process. Administrative preclearance isgranted automatically if the Attorney General hasnot interposed an objection within sixty days of thesubmission. 42 U.S.C. 1973c(a). In litigation,

however, DOJ must admit or deny each allegationin the complaint. Fed. R. Civ. P. 8(b). Here, DOJaffirmatively represented to the district court thatTexas is entitled to a declaratory judgment grantingpreclearance of the Texas Senate map. DN 45 at 1, 8(emphasis added).

Even if they are not allowed to intervene inSection 5 cases, private parties will remain free tochallenge voting changes under Section 2 or theConstitution. See Morris , 432 U.S. at 50607(Where the discriminatory character of anenactment is not detected upon review by the

Attorney General, it can be challenged in traditionalconstitutional litigation.). In such cases, the burdenis appropriately on the challengers to prove aviolation, not (as interpreted here) on the State topreemptively disprove every allegation against it.The defendant-intervenors here were alreadypursuing such claims in the Texas district courtwhen they moved to intervene in this case. And inall events, any interested private parties can easily

convey their views to the Section 5 court by filing an


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amicus brief, just as they may submit letters to DOJduring the administrative preclearance process.

B. This Court should grant review to considerthe role of private-party intervention more broadly,even as to plans to which DOJ objects. 16 Allowingprivate parties to intervene in judicial preclearancecases vastly increases the federalism costs of thepreclearance regime. Section 5 is at or beyond theouter limits of Congress constitutional authorityeven when DOJ is responsible for determining

whether preclearance should be granted or denied.But at least DOJ faces some institutional andpolitical constraints on its exercise of that authority.The same cannot be said for private individuals andinterest groups.

Unchecked intervention in Section 5 cases alsoimposes significant monetary and litigation costs oncovered jurisdictions. Each additional intervenorcompounds the burden of discovery, motions practice,expert testimony, briefing, and trial. In this case, six

DOJ lawyers entered appearances before the districtcourt, but twenty-two lawyers entered appearanceson behalf of twenty-four different intervenors. Thoseintervenors then insisted on taking their own

16 To the extent the Court reached a different conclusion inGeorgia v. Ashcroft , 539 U.S. at 476, that holding should belimited to its facts or overruled. The 2006 reauthorization of Section 5 raises grave constitutional concerns, and this Courtshould take all steps necessary to alleviate those concerns.Ending or sharply curtailing the abusive practice of carteblanche intervention would be a significant step in the rightdirection.


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discovery, filing their own briefs and motions,tendering their own experts, and making their ownpresentations at trialall of which Texas was forcedto respond to separately. 17 Worse yet, D.C. Circuitprecedent allows intervenors to collect attorneys feeswhenever a State unsuccessfully seeks judicialpreclearance. See Medina Cnty. v. United States , 683F.2d 435, 440 (D.C. Cir. 1982).

CONCLUSION

Each of the errors the district court committedexacerbated the inherent constitutional difficultieswith Section 5. If Texas position on these errors doesnot prevail, then Section 5 is not just constitutionallyproblematic, as this Court has repeatedly recognized,but the 2006 reauthorization of Section 5 would beclearly unconstitutional. While this Court may haveother opportunities to consider the constitutionalityof Section 5 in the abstract, this case demonstratesthe constitutional difficulties with Section 5 in itspractical application. This Court should grant

plenary review to consider the multiple issuesimplicated by the decision below and theconstitutional difficulties with the actualadministration of the statute. Indeed, if this Court

17 This case is hardly an isolated example. In SouthCarolina v. United States , No. 12-cv-203 (D.D.C.), eighteenseparate parties, represented by more than twenty-fiveattorneys, intervened in a case seeking judicial preclearance of a voter identification law. And in Texas own voter IDpreclearance trial, Texas v. Holder , No. 12-cv-128 (D.D.C.), theState faced over thirty intervenors, represented by thirty-fiveattorneys.


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considers Section 5s constitutionality in anothercase, plenary review of this casean as-appliedchallenge that amply demonstrates the practicalproblems with reversing burdens of proof, allowingmultiple intervenors, and saddling covered

jurisdictions with amorphous standards that compelthe consideration of racewould materially enhancethe Courts overall consideration of this incrediblyimportant issue.

The Court should note probable jurisdiction and

set this case for oral argument this Term to ensurethat litigation against Texas redistricting plans isresolved before the onset of the next election cycle.

Respectfully submitted,

GREG A BBOTT Attorney General of TexasD ANIEL T. H ODGE First Assistant Attorney

GeneralJ ONATHAN F. M ITCHELL

Solicitor General of TexasJ AMES D. BLACKLOCK J. REED CLAY , J R .M ATTHEW F REDERICK OFFICE OF THE

ATTORNEY GENERALP.O. Box 12548 (MC 059)

Austin, Texas 78711-2548(512) 936-1700

P AUL D. C LEMENT Counsel of Record J EFFREY M. H ARRIS M ICHAEL H. MCG INLEY BANCROFT PLLC1919 M Street, N.W.Suite 470Washington, DC 20036(202) [email protected]

A DAM K. M ORTARA J OHN M. H UGHES BARTLIT BECK HERMAN

PALENCHAR & SCOTT LLP54 W. Hubbard Street, Ste. 300Chicago, IL 60654(312) 494-4400

October 19, 2012 Counsel for Appellants

State of Texas Redistricting Appeal

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