Davis v. Perry

• Decision Date: 08 January 2014
• Docket Number: Civil Nos. SA–11–CA–788–OLG–JES–XR, SA–11–CA–855–OLG–JES–XR.
• Citation: 991 F.Supp.2d 809
• Court: U.S. District Court — Western District of Texas
• Parties: Wendy DAVIS, Marc Veasey, et al., Plaintiffs, v. Rick PERRY, et al., Defendants. League of United Latin American Citizens (LULAC), et al., Plaintiffs v. Rick Perry, et al., Defendants.

991 F.Supp.2d 809

Wendy DAVIS, Marc Veasey, et al., Plaintiffs,

v.Rick PERRY, et al., Defendants.

League of United Latin American Citizens (LULAC), et al., Plaintiffs

v.Rick Perry, et al., Defendants.

Civil Nos. SA–11–CA–788–OLG–JES–XR, SA–11–CA–855–OLG–JES–XR.

United States District Court,

W.D. Texas,

San Antonio Division.

Jan. 8, 2014.

David R. Richards, Richards Rodriguez & Skeith, LLP, Austin, TX, J. Gerald Hebert, J. Gerald Hebert, P.C., Alexandria, VA, for Plaintiffs.

Chad W. Dunn, Brazil & Dunn, Houston, TX, Ana M. Jordan, David Mattax, Assistant Attorney General, David J. Schenck, Deputy Attorney General for Legal Counsel, Angela V. Colmenero, Bruce D. Cohen, Matthew Hamilton Frederick, Office of the Attorney General, Jennifer Settle Jackson, Patrick K. Sweeten, Texas Attorney General, Donna Garcia Davidson, Austin, TX, for Defendants.

ORDER

JERRY E. SMITH, Circuit Judge, ORLANDO L. GARCIA, District Judge, XAVIER RODRIGUEZ, District Judge.

On this date, the Court considered Plaintiffs' Motions for Attorneys' Fees, Expenses, and Costs (docket nos. 193 & 194), and the responses and replies thereto.

I. Background

On September 22, 2011, Plaintiffs Wendy Davis, Marc Veasey, Roy Brooks, Vicky Bargas, Pat Pangburn, Frances DeLeon, Dorothy DeBose, and Sarah Joyner filed case no. SA: 11–CV–788, challenging the redistricting plan for the Texas Senate (Plan S148) adopted by the Texas Legislature in 2011. On October 17, 2011, LULAC and Domingo Garcia filed case number SA:11–CV–855. The claims in 11–CV–855 are substantially similar to the claims in 11–CV–788. Case 11–CV–855 was consolidated with 11–CV–788 as a member case on October 19, 2011.

Plaintiffs sought to protect their “right to vote for their preferred candidate to the Texas State Senate from Senate Districts 8, 10, 12, and 25.” SA: 11–CV–788, docket no. 1 ¶ 1; SA: 11–CV–855, docket no. 1 ¶ 1. Plaintiffs brought claims under the Voting Rights Act (“VRA”) and § 1983. They asserted that Plan S148 had not and likely would not receive preclearance under § 5 of the VRA and that, even if it were precleared, it could not be administered because it diluted the voting strength of minority voters in the Dallas and Tarrant Counties area of North Texas in violation of § 2 of the VRA. Id. ¶ 2. Plaintiffs further alleged that the intentional fracturing and dismantling of the coalition of minority voters in Senate District 10 constituted unlawful vote dilution and discrimination in violation of § 2 and the Fourteenth and Fifteenth Amendments. Plaintiffs asserted the following specific claims: (1) violation of the Equal Protection Clause of the Fourteenth Amendment; (2) abridgement of the privileges and immunities of citizenship guaranteed by the Fourteenth Amendment; (3) Plan S148 could not be administered because it had not been precleared under § 5 of the VRA; and (4) violation of § 2 of the VRA with regard to Senate District 10.

Plaintiffs prayed that the Court enjoin the use of Plan S148 because it had not been precleared, issue a declaratory judgment that the existing benchmark plan violated Plaintiffs' rights under the Constitution and federal law and was malapportioned, and issue a declaratory judgment finding that Plan S148 illegally dilutes the voting rights of minority voters (African Americans and Latinos) in the Dallas and Tarrant Counties region of North Texas in violation of § 2 of the VRA and was enacted with a racially discriminatory purpose in violation of § 2 of the VRA and the Fourteenth and Fifteenth Amendments. Plaintiffs also prayed that the Court permanently enjoin the use of the existing state senate districting plan or any other plan that violates the Constitution and federal law and order into effect a new plan that complies with federal law. Plaintiffs further sought fees and costs.

On September 29, 2011, this Court enjoined implementation of Plan S148 because it had not been precleared under § 5 of the VRA, as was required by then-existing law. Docket no. 8. The order stated that it would “be effective as a permanent injunction, subject to being lifted by order of the Court as appropriate.” Id.

The fact that S148 had not been precleared, coupled with the fact that the existing plan could not be used because it was malapportioned and election deadlines were looming, required the Court to create an interim plan for use in the 2012 elections. See Perry v. Perez, ––– U.S. ––––, 132 S.Ct. 934, 940, 181 L.Ed.2d 900 (2012) (noting that the Court was required to fashion an interim plan because the population changes reflected by the census rendered the benchmark plan unusable). The Court originally fashioned and adopted Plan S164 as the interim plan. However, Defendants contended that Plan S148 should be used for the 2012 election, and appealed this Court's implementation of Plan S164.

In Perry v. Perez, ––– U.S. ––––, 132 S.Ct. 934, 181 L.Ed.2d 900 (2012), the Supreme Court vacated this Court's order implementing Plan S164 and remanded for further proceedings consistent with its opinion. The Supreme Court held that this Court must give deference to the State's newly enacted plan in fashioning an interim plan, but should take care not to incorporate into the interim plan any legal defects in the State's plan. Thus, the Supreme Court held, this Court should be guided by the State's plan except to the extent the § 2 or constitutional claims were shown to have a likelihood of success on the merits or the Court found that aspects of the plan stood a reasonable probability of failing to gain § 5 preclearance in the District Court for the District of Columbia (“the D.C. Court”).¹ With regard to the § 5 claims, because only the D.C. Court had jurisdiction over the claims, this Court could not apply the traditional preliminary injunction standard to those claims. The Supreme Court held that this Court could not prejudge the merits of the claims, neither presuming that the State's effort to preclear its plan would succeed nor that it would fail. Id. at 942. Rather, this Court had to take “guidance from [Texas's] policy judgments unless they reflect[ed] aspects of the state plan that [stood] a reasonable probability of failing to gain § 5 preclearance.” Id. Under this standard, this Court was to determine whether the Plaintiffs' § 5 challenges in the D.C. Court were “not insubstantial.” Id.

After the Supreme Court's remand, this Court issued an Order on January 30 stating that, if the parties wanted to preserve the April 3 primary date, they would need to submit an agreed plan for the Court's consideration. Docket no. 111. Plaintiffs and Plaintiff–Intervenor Craig Estes ² developed a proposed interim plan, Plan S 171, which was a partial plan addressing Plaintiffs' claims regarding Senate District 10. Docket no. 147. Plan S172 incorporated Plan S 171 into the entire legislatively enacted Senate map. Id. Defendants stated that they had no objection to the Court's entry of an order directing that Plan S172 be used on an interim basis for the 2012 elections, but Defendants preserved all defenses for the final judgment stage of the case and did not admit that any of Plaintiffs' claims against Plan S148 had merit. Id. at 2.

On February 28, 2012, this Court adopted Plan S172 as the interim plan for the districts used to elect senators in 2012 to the Texas Senate. Docket no. 141. The Court rejected Defendants' argument that the Legislature's enacted plan must be used without change and expressly agreed with Plaintiffs' argument “that this Court should impose an interim remedial map that differs from the plan enacted by the Texas Legislature.” Docket no. 147 at 1. To comply with the obligation to ensure that no legal defects were incorporated into the interim plan, the Court reviewed the plan under the standards required by Perry v. Perez before approving the plan. Docket nos. 141, 147. Specifically, the Court “limited our changes in the State's enacted plan to those aspects of the plan ‘that [stood] a reasonable probability of failing to gain § 5 preclearance.’ ” Id. at 3. The Court found that Plan S172 reflected changes to Plan S148 that were appropriately designed to address Plaintiffs' not insubstantial claim that District 10 “reflects a prohibited purpose under Section 5 of the Voting Rights Act” and remedied the unconstitutional malapportionment of the state senate districts existingin the benchmark plan. Id. at 2. Plan S172 essentially restored Senate District 10 to its benchmark configuration. Given the Court's conclusion under the § 5 standard, the Court did not need to consider whether Plaintiffs had demonstrated a substantial likelihood of success on the § 2 and Fourteenth Amendment claims because those claims were also remedied through implementation of the § 5 interim remedy. The Court expressly ruled that nothing in the order represented a final judgment on the merits as to any claim or defense in the case, “nor does it affect any future claim for attorney's fees.” Docket no. 147 at 3. As a result of the Court's order, Plan S172 was used for the 2012 elections.

In August 2012, the D.C. Court issued a decision denying preclearance of Plan S148. Texas v. United States, 887 F.Supp.2d 133 (D.D.C.2012). The D.C. Court concluded “that Texas has not shown that the Senate Plan was enacted without discriminatory intent” and found “that the Senate Plan was enacted with discriminatory purpose as to SD 10.” Id. at 165–66. Texas appealed to the Supreme Court.

On June 24, 2013, the Texas Legislature passed a new redistricting plan for the Texas Senate, adopting the Court's interim plan (Plan S172) without change. On June 25, while the State's appeal of the D.C. Court's decision was pending, the Supreme Court decided Shelby County, Alabama v. Holder, –––U.S. ––––, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013), holding that § 4(b), the formula that determines which jurisdictions are automatically subject to § 5, is unconstitutional. The next day, on June 26,...