Abbott v. Perez, s. 17–586

CourtUnited States Supreme Court
Citation201 L.Ed.2d 714,138 S.Ct. 2305
Docket Number17–626.,Nos. 17–586,s. 17–586
Parties Greg ABBOTT, Governor of Texas, et al., Appellants v. Shannon PEREZ, et al. Greg Abbott, Governor of Texas, et al., Appellants v. Shannon Perez, et al.
Decision Date25 June 2018

138 S.Ct. 2305
201 L.Ed.2d 714

Greg ABBOTT, Governor of Texas, et al., Appellants
Shannon PEREZ, et al.

Greg Abbott, Governor of Texas, et al., Appellants
Shannon Perez, et al.

Nos. 17–586

Supreme Court of the United States

Argued April 24, 2018.
Decided June 25, 2018.

Scott A. Keller, Solicitor General, Austin, TX, for Appellants.

Edwin S. Kneedler, for Appellee United States supporting the Appellants.

Max Renea Hicks, Austin, TX, for Appellees in No. 17–586.

Allison J. Riggs, Durham, NC, for Appellees in No. 17–626.

Paul D. Clement, Erin E. Murphy, Kirkland & Ellis LLP, Washington, DC, Ken Paxton, Attorney General of Texas, Jeffrey C. Mateer, First Assistant Attorney General, Scott A. Keller, Solicitor General, Matthew H. Frederick, Deputy Solicitor General, Andrew B. Davis, Assistant Solicitor General, Office of the Attorney General, Austin, TX, for Appellants.

José Garza, Martin Golando, Garza Golando Moran, PLLC, San Antonio, TX, for appellee Mexican American Legislative Caucus, Texas House of Representatives.David Richards, Richards, Rodriguez & Skeith, LLP, Austin, TX, for Appellees Shannon Perez, et al.

138 S.Ct. 2313

Renea Hicks, Law Office of Max Renea Hicks, Austin, TX, Marc E. Elias, Bruce V. Spiva, Aria C. Branch, Perkins Coie LLP, Washington, DC, Abha Khanna, Perkins Coie LLP, Seattle, WA, for Appellees Eddie Rodriguez, et al.

Allison J. Riggs, Southern Coalition for Social Justice, Durham, NC, Robert Notzon, Law Office of Robert S. Notzon, Austin, TX, Victor L. Goode, NAACP, Baltimore, MD, for Appellees the Texas State Conference of NAACP Branches, et al.

Luis R. Vera, Jr., Law Offices of Luis Roberto Vera, Jr., San Antonio, TX, for Appellees LULAC, et al.

Gary L. Bledsoe, Potter Bledsoe, LLP, Austin, TX, for Appellees Congressmembers Eddie Bernice Johnson, Sheila Jackson Lee and Al Green and NAACP Intervenor Howard Jefferson.

J. Gerald Hebert, J. Gerald Hebert, P.C., Alexandria, VA, Mark P. Gaber, Washington, DC, Jessica Ring Amunson, Jenner & Block LLP, Washington, DC, Gerald H. Goldstein, Goldstein, Goldstein, & Hilley, San Antonio, TX, Donald H. Flanary, III, Flanary Law Firm, San Antonio, TX, Jesse Gaines, Fort Worth, TX, for Appellees Margarita Quesada, et al.

Rolando L. Rios, Law Offices of Rolando L. Rios, San Antonio, TX, for Appellee Congressman Henry Cuellar.

Noel J. Francisco, Solicitor General, Department of Justice, Washington, DC, for United States.

Justice ALITO delivered the opinion of the Court.

Before us for review are orders of a three-judge court in the Western District of Texas effectively directing the State not to conduct this year's elections using districting plans that the court itself adopted some years earlier. The court developed those plans for use in the 2012 elections pursuant to our directions in Perry v. Perez, 565 U.S. 388, 132 S.Ct. 934, 181 L.Ed.2d 900 (2012) (per curiam ). We instructed the three-judge court to start with the plans adopted by the Texas Legislature in 2011 but to make adjustments as required by the Constitution and the Voting Rights Act. Id., at 392–396, 132 S.Ct. 934. After those plans were used in 2012, the Texas Legislature enacted them (with only minor modifications) in 2013, and the plans were used again in both 2014 and 2016.

Last year, however, the three-judge court reversed its prior analysis and held that some of the districts in those plans are unlawful. After reviewing the repealed 2011 plans, which had never been used, the court found that they were tainted by discriminatory intent and that the 2013 Legislature had not "cured" that "taint."

We now hold that the three-judge court committed a fundamental legal error. It was the challengers' burden to show that the 2013 Legislature acted with discriminatory intent when it enacted plans that the court itself had produced. The 2013 Legislature was not obligated to show that it had "cured" the unlawful intent that the court attributed to the 2011 Legislature. Thus, the essential pillar of the three-judge court's reasoning was critically flawed.

When the congressional and state legislative districts are reviewed under the

138 S.Ct. 2314

proper legal standards, all but one of them, we conclude, are lawful.



The 2010 decennial census revealed that the population of Texas had grown by more than 20% and the State was therefore apportioned four additional seats in the United States House of Representatives. C.J.S. 369a.1 To accommodate this new allocation and the population changes shown by the census, the Legislature adopted a new congressional districting plan, as well as new districting maps for the two houses of the State Legislature.

Redistricting is never easy, and the task was especially complicated in Texas in 2011. Not only was the Legislature required to draw districts that were substantially equal in population, see Perry, supra, at 391–392, 126 S.Ct. 2594 ; Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) ; Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), and to comply with special state-law districting rules,2 but federal law imposed complex and delicately balanced requirements regarding the consideration of race.

Then, as now, federal law restricted the use of race in making districting decisions. The Equal Protection Clause forbids "racial gerrymandering," that is, intentionally assigning citizens to a district on the basis of race without sufficient justification. Shaw v. Reno, 509 U.S. 630, 641, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993). It also prohibits intentional "vote dilution"—"invidiously ... minimiz[ing] or cancel[ing] out the voting potential of racial or ethnic minorities." Mobile v. Bolden, 446 U.S. 55, 66–67, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980) (plurality opinion).

While the Equal Protection Clause imposes these important restrictions, its application in the field of districting is complicated. For one thing, because a voter's race sometimes correlates closely with political party preference, see Cooper v. Harris, 581 U.S. ––––, –––– – ––––, 137 S.Ct. 1455, 1473–1474, 197 L.Ed.2d 837 (2017) ; Easley v. Cromartie, 532 U.S. 234, 243, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001), it may be very difficult for a court to determine whether a districting decision was based on race or party preference. Here, the three-judge court found that the two factors were virtually indistinguishable.3

At the same time that the Equal Protection Clause restricts the consideration of race in the districting process, compliance with the Voting Rights Act of 1965, 79 Stat. 437, as amended, 52 U.S.C. § 10301 et seq. (VRA), pulls in the opposite direction: It often insists that districts be created precisely because of race. Two provisions of the VRA exert such demands, and in 2011, Texas was subject to both.

138 S.Ct. 2315

At that time, Texas was covered by § 5 of the VRA4 and was thus barred from making any districting changes unless it could prove that they did not result in "retrogression" with respect to the ability of racial minorities to elect the candidates of their choice. Alabama Legislative Black Caucus v. Alabama, 575 U.S. ––––, ––––, 135 S.Ct. 1257, 1263, 191 L.Ed.2d 314 (2015). That showing obviously demanded consideration of race.

On top of this, Texas was (and still is) required to comply with § 2 of the VRA. A State violates § 2 if its districting plan provides " 'less opportunity' " for racial minorities " 'to elect representatives of their choice.' " League of United Latin American Citizens v. Perry, 548 U.S. 399, 425, 126 S.Ct. 2594, 165 L.Ed.2d 609 (2006) (LULAC ). In a series of cases tracing back to Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), we have interpreted this standard to mean that, under certain circumstance, States must draw "opportunity" districts in which minority groups form "effective majorit[ies]," LULAC, supra, at 426, 126 S.Ct. 2594.

Since the Equal Protection Clause restricts consideration of race and the VRA demands consideration of race, a legislature attempting to produce a lawful districting plan is vulnerable to " 'competing hazards of liability.' " Bush v. Vera, 517 U.S. 952, 977, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996) (plurality opinion). In an effort to harmonize these conflicting demands, we have assumed that compliance with the VRA may justify the consideration of race in a way that would not otherwise be allowed. In technical terms, we have assumed that complying with the VRA is a compelling state interest, see, e.g., Bethune–Hill v. Virginia State Bd. of Elections, 580 U.S. ––––, ––––, 137 S.Ct. 788, 800–801, 197 L.Ed.2d 85 (2017) ; Shaw v. Hunt, 517 U.S. 899, 915, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996), and that a State's consideration of race in making a districting decision is narrowly tailored and thus satisfies strict scrutiny if the State has " 'good reasons' " for believing that its decision is necessary in order to comply with the VRA. Cooper, supra, at ––––, 137 S.Ct., at 1464.


Facing this legal obstacle course, the Texas Legislature in 2011 adopted new districting plans, but those plans were immediately tied up in litigation and were never used. Several...

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