Perry v. Perez

• Decision Date: 20 January 2012
• Docket Number: 11–715.,11–714,Nos. 11–713,s. 11–713
• Citation: 181 L.Ed.2d 900,565 U.S. 388,132 S.Ct. 934
• Parties: Rick PERRY, Governor of Texas, et al., Appellants v. Shannon PEREZ, et al. Rick Perry, Governor of Texas, et al., Appellants v. Wendy Davis, et al. Rick Perry, Governor of Texas, et al., Appellants v. Shannon Perez, et al.
• Court: U.S. Supreme Court

565 U.S. 388

132 S.Ct. 934

181 L.Ed.2d 900

Rick PERRY, Governor of Texas, et al., Appellants

v.Shannon PEREZ, et al.

Rick Perry, Governor of Texas, et al., Appellants

v.Wendy Davis, et al.

Rick Perry, Governor of Texas, et al., Appellants

v.Shannon Perez, et al.

Nos. 11–713

11–714

11–715.

Supreme Court of the United States

Argued Dec. 9, 2011.

Decided Jan. 20, 2012.

Christian J. Ward, Yetter Coleman LLP, Austin, TX, for Appellant Steve Munisteri.

Greg Abbott, Attorney General of Texas, Jonathan Mitchell, Solicitor General of Texas, David J. Schenck, James D. Blacklock, J. Reed Clay, Jr., Matthew H. Frederick, Office of the Attorney General, Austin, TX, Paul D. Clement, Counsel of Record, Conor B. Dugan, Jeffrey M. Harris, Bancroft PLLC, Washington, DC, for Appellants.

Renea Hicks, Counsel of Record, Law Office of Max Renea Hicks, Austin, TX, for Rodriguez Appellees.

John Devaney, Marc E. Elias, Perkins Coie LLP, Washington, DC, Kevin J. Hamilton, Abha Khanna, Lisa Marshall Manheim, Noah Guzzo Purcell, Perkins Coie LLP, Seattle, WA, for Rodriguez Respondents.

Luis Roberto Vera, Jr., Counsel of Record, LULAC National General Counsel, San Antonio, TX, for LULAC.

Karen Kennard, City Attorney, Austin, TX, for City of Austin.

David A. Escamilla, Travis County Attorney, Austin, TX, for Travis County, Austin, TX, for Travis County.

Paul M. Smith, Counsel of Record, Michael B. DeSanctis, Jessica Ring Amunson, Caroline D. Lopez, Jenner & Block LLP, Washington, DC, J. Gerald Hebert, J. Gerald Hebert, P.C., Alexandria, VA, for Quesada Appellee.

Paul M. Smith, Counsel of Record, Michael B. DeSanctis, Jessica Ring Amunson, Caroline D. Lopez, Jenner & Block LLP, Washington, DC, David Richards, Richards, Rodriguez & Skeith LLP, Austin, TX, J. Gerald Hebert, J. Gerald Hebert, P.C., Alexandria, VA, for Davis Appellees.

Nina Perales, Mexican American Legal Defense and Educational Fund, San Antonio, TX, Counsel of Record, Appellee Texas Latino Redistricting Task Force, et al., Jose Garza, Law Office of Jose Garza, San Antonio, TX, Pamela Karlan, Stanford, CA, Joaquin G. Avila, Seattle, WA, for Appellee MALC.

Richard E. Gray, III, Gray and Baker, P.C., Austin, TX, David Richards, Richards, Rodriguez & Skeith LLP, for Appellees Perez, et al.

Anita Earls, Counsel of Record, Allison Riggs, Durham, NC, Robert S. Notzon, Law Office of Robert S. Notzon, Austin, TX, Victor Goode, Assistance General Counsel, Baltimore, MD, for Texas State Conference of NAACP Branches, Bill Lawson, and Juanita Wallace.

Gary Bledsoe, Law Offices of Gary L. Bledsoe and Associates, Austin, TX, for Howard Jefferson and Congresspersons Eddie Bernice Johnson, Sheila Jackson–Lee and Alexander Green.

PER CURIAM.

The 2010 census showed an enormous increase in Texas' population, with over four million new residents. That growth required the State to redraw its electoral districts for the United States Congress, the State Senate, and the State House of Representatives, in order to comply with the Constitution's one-person, one-vote rule. See Georgia v. Ashcroft, 539 U.S. 461, 488, n. 2, 123 S.Ct. 2498, 156 L.Ed.2d 428 (2003). The State also had to create new districts for the four additional congressional seats it received.

Texas is a "covered jurisdiction" under Section 5 of the Voting Rights Act of 1965. See 79 Stat. 439, 42 U.S.C. § 1973c(a) ; 28 CFR pt. 51, App. (2011). Section 5 suspends all changes to a covered jurisdiction's election procedures, including district lines, until those changes are submitted to and approved by a three-judge United States District Court for the District of Columbia, or the Attorney General. See Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U.S. 193, 198, 129 S.Ct. 2504, 174 L.Ed.2d 140 (2009). This process, known as preclearance, requires the covered jurisdiction to demonstrate that its proposed change "neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color." § 1973c(a). This Court has been emphatic that a new electoral map cannot be used to conduct an election until it has been precleared. See, e.g., Clark v. Roemer, 500 U.S. 646, 652, 111 S.Ct. 2096, 114 L.Ed.2d 691 (1991).

The day after completing its new electoral plans, Texas submitted them to the United States District Court for the District of Columbia for preclearance. The preclearance process remains ongoing. Texas was unsuccessful in its bid for summary judgment, and a trial is scheduled in the coming weeks. Meanwhile, various plaintiffs—appellees here—brought suit in Texas, claiming that the State's newly enacted plans violate the United States Constitution and § 2 of the Voting Rights Act.¹ Appellees alleged, inter alia, that Texas' enacted plans discriminate against Latinos and African–Americans and dilute their voting strength, notwithstanding the fact that Latinos and African–Americans accounted for three-quarters of Texas' population growth since 2000. A three-judge panel of the United States District Court for the Western District of Texas was convened. See 28 U.S.C. § 2284. That court heard argument and held a trial with respect to the plaintiffs' claims, but withheld judgment pending resolution of the preclearance process in the D.C. court. Cf. Branch v. Smith, 538 U.S. 254, 283–285, 123 S.Ct. 1429, 155 L.Ed.2d 407 (2003) (KENNEDY, J., concurring).

As Texas' 2012 primaries approached, it became increasingly likely that the State's newly enacted plans would not receive preclearance in time for the 2012 elections. And the State's old district lines could not be used, because population growth had rendered them inconsistent with the Constitution's one-person, one-vote requirement. It thus fell to the District Court in Texas to devise interim plans for the State's 2012 primaries and elections. See Connor v. Finch, 431 U.S. 407, 414–415, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977). After receiving proposals from the parties and holding extensive hearings, that court issued its interim plans. The court unanimously agreed on an interim State Senate plan, but Judge Smith dissented with respect to the congressional and State House plans. Texas asked this Court to stay the interim plans pending an appeal, arguing that they were unnecessarily inconsistent with the State's enacted plans. This Court granted the stay and noted probable jurisdiction. 565 U.S. ––––, 132 S.Ct. 842, 843, 181L.Ed.2d 545 (2011).

Redistricting is "primarily the duty and responsibility of the State." Chapman v. Meier, 420 U.S. 1, 27, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975). The failure of a State's newly enacted plan to gain preclearance prior to an upcoming election does not, by itself, require a court to take up the state legislature's task. That is because, in most circumstances, the State's last enacted plan simply remains in effect until the new plan receives preclearance. But if an intervening event—most commonly, as here, a census—renders the current plan unusable, a court must undertake the "unwelcome obligation" of creating an interim plan. Connor, supra, at 415, 97 S.Ct. 1828. Even then, the plan already in effect may give sufficient structure to the court's endeavor. Where shifts in a State's population have been relatively small, a court may need to make only minor or obvious adjustments to the State's existing districts in order to devise an interim plan.

But here the scale of Texas' population growth appears to require sweeping changes to the State's current districts. In areas where population shifts are so large that no semblance of the existing plan's district lines can be used, that plan offers little guidance to a court drawing an interim map. The problem is perhaps most obvious in adding new congressional districts: The old plan gives no suggestion as to where those new districts should be placed. In addition, experience has shown the difficulty of defining neutral legal principles in this area, for redistricting ordinarily involves criteria and standards that have been weighed and evaluated by the elected branches in the exercise of their political judgment. See, e.g., Miller v. Johnson, 515 U.S. 900, 915–916, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995) ; White v. Weiser, 412 U.S. 783, 795–796, 93 S.Ct. 2348, 37 L.Ed.2d 335 (1973). Thus, if the old state districts were the only source to which a district court could look, it would be forced to make the sort of policy judgments for which courts are, at best, ill suited.

To avoid being compelled to make such otherwise standardless decisions, a district court should take guidance from the State's recently enacted plan in drafting an interim plan. That plan reflects the State's policy judgments on where to place new districts and how to shift existing ones in response to massive population growth. This Court has observed before that "faced with the necessity of drawing district lines by judicial order, a court, as a general rule, should be guided by the legislative policies underlying" a state plan—even one that was itself unenforceable—"to the extent those policies do not lead to violations of the Constitution or the Voting Rights Act." Abrams v. Johnson, 521 U.S. 74, 79, 117 S.Ct. 1925, 138 L.Ed.2d 285 (1997) (holding that the District Court properly declined to defer to a precleared plan that used race as a predominant factor). For example, in White, supra, an equal population challenge, this Court reversed a District Court's choice of interim plan, and required the District Court to choose a plan more closely resembling an enacted state plan, even though the state plan itself had been held to violate the one-person, one-vote principle. Similarly, in Upham v. Seamon, although the state plan as a whole had been denied § 5 preclearance, this Court directed a District Court to "defer to the legislative judgments the [state] plans reflect," insofar as they involved districts found to meet the preclearance standard. 456 U.S. 37, 40–41, 102 S.Ct. 1518, 71 L.Ed.2d 725 (1982)(per curiam) . See also ...