State v. United States, Civil Action No. 11–1303 (RMC)

• Court: United States District Courts. United States District Court (Columbia)
• Citation: 49 F.Supp.3d 27
• Docket Number: Civil Action No. 11–1303 (RMC)
• Parties: State of Texas, Plaintiff, v. United States of America, and Eric H. Holder, Jr., in his official capacity as Attorney General of the United States, Defendants, and Wendy Davis, et al., Defendant-Intervenors.
• Decision Date: 18 June 2014

49 F.Supp.3d 27

State of Texas, Plaintiff,
v.
United States of America, and Eric H. Holder, Jr., in his official capacity as Attorney General of the United States, Defendants,
and
Wendy Davis, et al., Defendant-Intervenors.

Civil Action No. 11–1303 (RMC)

United States District Court, District of Columbia.

Signed June 18, 2014

Motion granted.

[49 F.Supp.3d 30]

Angela Veronica Colmenero, David John Schenck, Jonathan F. Mitchell, Matthew Hamilton Frederick, Office of the Attorney General, Austin, TX, Adam K. Mortara, Ashley C. Keller, Bartlit Beck Herman Palenchar & Scott LLP, Chicago, IL, John M. Hughes, Bartlit Beck Herman Palenchar & Scott LLP, Denver, CO, for Plaintiff.

Bryan L. Sells, Daniel J. Freeman, Janie Allison Sitton, Michelle Andrea McLeod, Olimpia E. Michel,

[49 F.Supp.3d 31]

Thornton Russell Nobile, U.S. Department of Justice, Washington, DC, for Defendants.

John M. Devaney, Perkins Coie LLP, Mark A. Posner, Lawyers' Committee for Civil Rights, John Kent Tanner, Karen M. Soares, Fried, Frank, Harris, Shriver & Jacobson LLP, Washington, DC, Joseph Gerald Hebert, Law Office Of Joseph Gerald Hebert, Alexandria, VA, Chad W. Dunn, Brazil & Dunn, Houston, TX, Joseph Gerald Hebert, Law Office of Joseph Gerald Hebert, Alexandria, VA, Joaquin Avila, Law Office Of Joaquin G. Avila, Kevin J. Hamilton, Marc Erik Elias, Perkins Coie, LLP, Seattle, WA, Jose Garza, Law Office of Jose Garza, San Antonio, TX, Renea Hicks, Law Offices of Max Renea Hicks, Gary L. Bledsoe, Law Office of Gary L. Bledsoe and Associates, Robert Stephen Notzon, Austin, TX, Jorge Martin Castillo, Fried, Frank, Harris, Shriver & Jacobson LLP, New York, NY, Karolina J. Lyznik, Marisa Bono, Mexican American Legal Defense & Educational Fund, San Antonio, TX, Allison Jean Riggs, Southern Coalition for Social Justice, Durham, NC, for Defendant-Intervenors.
OPINION
ROSEMARY M. COLLYER, United States District Judge

This matter presents a case study in how not to respond to a motion for attorney fees and costs. At issue is whether defendant-intervenors, who prevailed in Voting Rights Act litigation before a three judge panel, may recoup attorney fees and costs even though the Supreme Court vacated that opinion in light of the Supreme Court's subsequent decision in a different lawsuit that declared a section of the Voting Rights Act unconstitutional. A quick search of the Federal Reporter reveals the complexity of this narrow question. Yet, rather than engage the fee applicants, Plaintiff Texas basically ignores the arguments supporting an award of fees and costs. In a three-page filing entitled “Advisory,” Texas trumpets the Supreme Court's decision, expresses indignation at having to respond at all, and presumes that the motion for attorney fees is so frivolous that Texas need not provide further briefing in opposition unless requested. Such an opposition is insufficient in this jurisdiction. Circuit precedent and the Local Rules of this Court provide that the failure to respond to an opposing party's arguments results in waiver as to the unaddressed contentions, and the Court finds that Texas's “Advisory” presents no opposition on the applicable law. Accordingly, the Court will award the requested fees and costs.

I. FACTS

Following the 2010 Census, Texas redrew its State and congressional voting districts to account for its growing population and new congressional seats, see U.S. Const. art. I, § 2, cl. 3; U.S. Const. amend. XIV, § 2, and to comply with the principle of one-person, one-vote, see Georgia v. Ashcroft, 539 U.S. 461, 488 n. 2, 123 S.Ct. 2498, 156 L.Ed.2d 428 (2003) (citing Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964)). The new voting districts could not take immediate effect, however. At the time the redistricting plans were enacted, the State fell within the coverage formula of Section 4(b) of the Voting Rights Act of 1965(VRA), 42 U.S.C. §§ 1973, et seq., and, therefore, was required under Section 5 of the VRA to obtain approval, or “preclearance,” of its redistricting plans from the Attorney General of the United States or a three judge panel of this Court, see id. § 1973c(a). Texas did not seek administrative preclearance but instead filed suit in this Court on July 19, 2011. See Compl. [Dkt. 1]. The lawsuit sought approval for redistricting

[49 F.Supp.3d 32]

plans the Texas Legislature had drawn for the U.S. House of Representatives (Plan C185), the Texas House of Representatives (Plan H283), the Texas Senate (Plan S148), and the Texas State Board of Education. Texas sought a declaratory judgment that all Plans complied with Section 5 of the VRA because they neither had “the purpose nor ... effect of denying or abridging the right to vote on account of race, color, or [language minority group].” ¹ 42 U.S.C. § 1973c(a).

Properly convened as a three judge panel, id.; 28 U.S.C. § 2284, this Court had jurisdiction pursuant to 42 U.S.C. § 1973c and 28 U.S.C. §§ 1346(a)(2), 2201. The United States opposed preclearance of Plans C185 and H283. In addition, seven parties intervened as defendants, each of whom opposed preclearance of one or more of Texas's redistricting Plans.² No party, however, objected to the plan for the Texas State Board of Education. Therefore, on September 22, 2011, the Court entered judgment in favor of Texas on that Plan, permitting its immediate implementation. See Sept. 22, 2011 Minute Order; see also Texas, 887 F.Supp.2d at 138 n. 1.

After denying Texas's motion for summary judgment and ordering expedited discovery, the three judge Court conducted a bench trial over a two-week period in January 2012. The United States and Defendant–Intervenors argued against preclearance, presenting evidence at trial and submitting post-trial briefing. Texas, 887 F.Supp.2d at 139. The opposition to the Plans, however, was not uniform. For instance, the United States, the Texas Latino Redistricting Task Force, and the Gonzales Intervenors all presented expert reports and testimonies concerning retrogression. Id. at 141. Only the Davis Intervenors, Texas NAACP Intervenors, the League of Urban Latin American Citizens, and the Texas Legislative Black Caucus argued that Plan S 148 should be denied preclearance due to the retrogressive manner in which the Texas Legislature had drawn State Senate District 10 (Fort Worth).³ See id. at 162. Texas presented its own expert testimony and argued vigorously for approval of all three Plans. The upshot was a “voluminous trial record” that fleshed out the controversies. Id. at 139.

The three judges of this Court were not the only judicial officers wrestling with redistricting Plans C185, H283, and S148. Several parties, including many of the Defendant-Intervenors in the instant litigation, had instituted suit against Texas in the Western District of Texas under Section

[49 F.Supp.3d 33]

2 of the VRA, 42 U.S.C. § 1973(a).⁴ Before a three judge panel in the Western District of Texas, those parties argued that Plans C185, H283, and S148 violated Section 2 because all three Plans discriminated against minority voters by diluting their voting strength in certain areas of Texas. Perry v. Perez, ––– U.S. ––––, 132 S.Ct. 934, 940, 181 L.Ed.2d 900 (2012) (per curiam). Although the three judge panel in Texas withheld judgment until this Court resolved the preclearance litigation, it adopted interim plans for the 2012 election because the redistricting Plans had not been precleared and the State could not use its prior voting districts, now malapportioned because of population growth. See id. The Texas court imposed a set of interim maps, which were later adjusted after the Supreme Court vacated them due to various errors not pertinent here. See id. at 943–44.

On August 28, 2012, this Court denied Texas's motion for declaratory judgment, finding that Plans C 185, S 148, and H283 did not merit preclearance because Texas had not carried its burden of showing that those Plans did “not have the purpose or effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group under [S]ection 5 of [VRA].” See Texas, 887 F.Supp.2d at 178. Specifically, the Court found that Texas had failed to overcome evidence of the retrogressive effect of Plans C185 and H283 and evidence of discriminatory purpose in enacting Plan C185 and Senate District 10 in Plan S148. Id. at 162, 178. Throughout its Opinion, this Court made clear that it was relying on the evidence offered at trial by all parties, including Defendant–Intervenors.

On October 19, 2012, Texas appealed this Court's decision to the Supreme Court. Thereafter, between June 21 and 23, 2013, the Texas Legislature repealed and replaced Plans C185, H283, and S148 with new maps. The Texas Legislature passed three separate statutes that redrew the State's voting districts in a manner that closely mirrored the second set of interim plans ordered by the Perez Court. See Davis Mot. for Fees [Dkt. 256] at 10. The Governor of Texas signed these new plans into law on June 26, 2013. Id. at 11.

On June 25, 2013, after Texas legislative action and one day before the Governor signed the three new redistricting plans into law, the Supreme Court issued Shelby County v. Holder, ––– U.S. ––––, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013). Shelby County involved a constitutional challenge to Section 4 of the VRA. The Supreme Court held that because the coverage formula in Section 4(b) was based on stale data and distinguished among the States in an unconstitutional manner, it “can no longer be used as a basis for subjecting jurisdictions to preclearance.” Id. at 2631. Then, on June 27, 2013, one day after Texas replaced Plans C1 85, S 148, and H283, the Supreme Court vacated and remanded this Court's opinion that had denied preclearance to Texas. The Davis Intervenors had immediately moved in the Supreme Court for dismissal of Texas's appeal as moot in light of the formal adoption of new voting plans by the...