Perez v. Abbott

• Decision Date: 15 August 2017
• Docket Number: SA–11–CV–360
• Citation: 274 F.Supp.3d 624
• Parties: Shannon PEREZ, et al. v. Greg ABBOTT, et al.
• Court: U.S. District Court — Western District of Texas

274 F.Supp.3d 624

Shannon PEREZ, et al.

v.Greg ABBOTT, et al.

SA–11–CV–360

United States District Court, W.D. Texas.

Signed August 15, 2017

David R. Richards, Richards Rodriguez & Skeith, LLP, Richard Edwin Gray, III, Gray & Becker, P.C., Austin, TX, Luis Roberto Vera, Jr., Law Offices of Luis Roberto Vera & Associates, P.C., San Antonio, TX, J. Gerald Hebert, J. Gerald Hebert, P.C., Alexandria, VA, Denise Hulett, Pro Hac Vice, Mexican American Legal Defense & Educational Fund, Sacramento, CA, Ernest I. Herrera, Mexican American Legal Defense and Educational Fund, Donald H. Flanary, III, Flanary Law Firm, Marisa Bono, Nina Perales, MALDEF [Mexican American Legal Defense & Educational Fund], Gerald Harris Goldstein, Attorney at Law, San Antonio, TX, Jesse Gaines, Attorney at Law, Fort Worth, TX, Jessica Ring Amunson, Michael B. DeSanctis, Paul M. Smith, Jenner & Block LLP, Mark P. Gaber, Law Office, Washington, DC, for Shannon Perez, et al.

ORDER ON PLAN C235

XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE, on behalf of the panel

Before Circuit Judge SMITH, Chief District Judge GARCIA, and District Judge RODRIGUEZ

This Order addresses Plaintiffs' statutory and constitutional claims against Plan C235, enacted by the 83rd Texas Legislature in 2013.

The following Plaintiffs assert claims against Plan C235 in this consolidated case: the Mexican American Legislative Caucus ("MALC"),¹ the NAACP Plaintiffs,² the African–American Congresspersons Plaintiffs,³ the League of United Latin American Citizens ("LULAC") Plaintiffs,⁴ the Rodriguez Plaintiffs,⁵ the Quesada Plaintiffs,⁶ and Congressman Henry Cuellar.

Plaintiffs assert statutory claims under § 2 of the Voting Rights Act ("VRA") and constitutional claims under the Fourteenth and Fifteenth Amendments to the United States Constitution.

Procedural History and Background

Plaintiffs initially filed several lawsuits in 2011 challenging Plan C185 and Plan H283 enacted by the 82nd Legislature, and the various cases were consolidated. At the time, Texas was subject to preclearance requirements under § 5 of the VRA, and Texas filed a simultaneous action seeking preclearance in the United States District Court for the District of Columbia—Texas v. United States , No. 11–1303 (D.D.C).⁷ Plaintiffs presented numerous claims in this Court under § 2 of the VRA and the Fourteenth and Fifteenth Amendments, and raised numerous challenges to the plans in the related preclearance litigation in the District of Columbia. The D.C. Court held a trial in January 2012 but had not yet issued a ruling in February 2012.

Faced with impending election deadlines and un-precleared plans that could not be used in the election, this Court was faced with the "unwelcome obligation" of implementing interim plans so that the primaries could proceed. See docket no. 690 at 2 (quoting Connor v. Finch , 431 U.S. 407, 415, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977) ). This Court considered compromise plans (Plan C226 and Plan H303) proposed by certain parties. Although the plans were supported by some parties, including Defendants, most parties contended that they maintained statutory and constitutional infirmities challenged in Plan C185 and Plan H283. The Court adopted Plan C235 (which was Plan C226 as modified for purely technical reasons) and Plan H309, a plan similar to Plan H303 but with changes in Harris County, Bexar County, Webb County, and Nueces County.

This Court found that adoption of these plans as the interim plans for the 2012 elections was consistent with the deferential standards set forth in Perry v. Perez , 565 U.S. 388, 132 S.Ct. 934, 181 L.Ed.2d 900 (2012) and would significantly benefit the voters, candidates, election administrators, counties, and political parties. Docket nos. 690, 691. The Court noted that its analysis had been expedited and curtailed and that it had been able to make only preliminary conclusions that might be revised upon full analysis. Docket no. 690 at 3 ("[W]e emphasize the preliminary nature of this order and that, except for the fact that PLAN H309 sets the districts for the 2012 elections, nothing in this opinion reflects this Court's final determination of any legal or factual matters in this case or the case pending in the D.C. Court."); docket no. 691 at 1 (noting that "this interim map is a result of preliminary determinations" and "is not a final ruling on the merits of any claims").

As directed by the Supreme Court, this Court in adopting an interim map attempted to determine which claims pending in the D.C. Court preclearance litigation were "not insubstantial" because the D.C. Court had exclusive jurisdiction over the § 5 claims but had not yet ruled. That Court issued its decision denying preclearance of Plan C185 and Plan H283 on August 28, 2012. Texas v. United States , 887 F.Supp.2d 133 (D.D.C. 2012). The panel majority found that Plan C185 increased the "representation gap" from three districts to four districts⁸ and thus increased the degree of discrimination and was retrogressive. Because the panel did not agree on the appropriate rationale for finding retrogression, they considered the issue of discriminatory intent and unanimously found that "the plan was enacted with discriminatory purpose." Id. at 159. The Court specifically noted that unnecessary changes were made to the three African–American ability districts that raised serious concerns about what motivated the Congressional plan, and that Texas failed to explain the changes as anything other than "coincidence." Id. at 159–61.

With regard to Plan H283, the D.C. Court found that it would have the effect of abridging minority voting rights in benchmark ability districts 33, 35, 117, and 149, and that Texas did not create any new ability districts to offset those losses. Accordingly, the plan was retrogressive and could not be precleared.

Having found retrogressive effect, the D.C. Court did not need to reach whether Plan H283 was drawn with a discriminatory purpose, but it did "note record evidence that cause[d] concern." 887 F.Supp.2d at 177. This evidence included that the process for drawing the plan "showed little attention to, training on, or concern for the VRA" and the failure to create any new minority ability districts among 150 relatively small House districts despite the dramatic Hispanic population growth concentrated primarily in three geographic areas. Id. at 177–78. The D.C. Court further stated, "These concerns are exacerbated by the evidence we received about the process that led to enacted HD 117," specifically that "mapdrawers modified HD 117 so that it would elect the Anglo-preferred candidate yet would look like a Hispanic ability district on paper," showing "a deliberate, race-conscious method to manipulate not simply the Democratic vote but, more specifically, the Hispanic vote." Id. at 178 (emphasis in original).

The D.C. Court also found incredible the testimony of primary House mapdrawer Gerardo Interiano that he was unaware of the capability of Texas's redistricting software (RedAppl) to display racial data at the census block level, which reinforced evidence suggesting that mapdrawers split voter tabulation districts ("VTDs") along racial lines to dilute minority voting power. Id. The D.C. Court concluded,

This and other record evidence may support a finding of discriminatory purpose in enacting the State House Plan. Although we need not reach this issue, at minimum, the full record strongly suggests that the retrogressive effect we have found may not have been accidental.

Id. Texas appealed the D.C. Court's decision denying preclearance to the Supreme Court.

The Court's interim maps, H309 and C235, were used for elections in 2012. Despite urging from the Texas Attorney General to adopt the Court's interim maps during the regular session in 2013,⁹ the Texas Legislature's regular session ended in May 2013 with no redistricting action. However, Governor Rick Perry called a special session directing the Legislature to consider "legislation which ratifies and adopts the interim redistricting plans ordered by the federal district court as the permanent plans for districts used to elect members of the Texas House of Representatives, Texas Senate and United States House of Representatives." D–684.

The Legislature reconvened and undertook this redistricting task. During the special session, some changes were made to Plan H309, and it was adopted as Plan H358. By June 23, 2013, the Legislature had passed SB3 and SB4 to enrollment. SB4 "ratified and adopted" this Court's interim congressional map, Plan C235, without change, and repealed SB4 from the 2011 first special session, which had adopted Plan C185. SB3 adopted Plan H358 as the plan for the Texas House of Representatives and repealed HB150 from the 2011 regular session, which had adopted Plan H283. SB3 and SB4 were sent to the Governor on June 24, 2013.

On June 25, 2013, while Texas's appeal of the D.C. Court's decision was pending, the United States Supreme Court issued its decision in Shelby County v. Holder , 570 U.S. 529, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013), holding that the § 4(b) coverage formula of the VRA that determined which jurisdictions were subject to § 5 preclearance was unconstitutional. Accordingly, Texas was no longer automatically subject to preclearance requirements. The Governor signed SB3 and SB4 on June 26, 2013.¹⁰

On June 27, 2013, the Supreme Court vacated the D.C. Court's judgment and remanded for further consideration in light of its intervening decision in Shelby County v. Holder , 570 U.S. 529, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013) and the suggestion of mootness filed by defendant Wendy Davis. Texas v. United States , 570 U.S. 928, 133 S.Ct. 2885, 186 L.Ed.2d 930 (2013). On remand, the D.C. Court dismissed the preclearance litigation as moot.¹¹

On June 28, 2013, Defendants filed a motion to dismiss for lack of subject matter jurisdiction (docket no. 768) in this case, arguing that the case had become moot...