Texas v. United States

• Decision Date: 22 December 2011
• Docket Number: Civil Action No. 11–1303 (TBG–RMC–BAH).
• Citation: 831 F.Supp.2d 244
• Parties: State of TEXAS, Plaintiff, v. UNITED STATES of America, and Eric H. Holder, in his official capacity as Attorney General of the United States, Defendants, and Wendy Davis, et al., Intervenor–Defendants.
• Court: U.S. District Court — District of Columbia

831 F.Supp.2d 244

State of TEXAS, Plaintiff,

v. UNITED STATES of America, and Eric H. Holder, in his official capacity as Attorney General of the United States, Defendants,andWendy Davis, et al., Intervenor–Defendants.

Civil Action No. 11–1303 (TBG–RMC–BAH).

United States District Court, District of Columbia.

Dec. 22, 2011.

David John Schenck, Office of the Attorney General, Austin, TX, for Plaintiff.

Daniel J. Freeman, Janie Allison Sitton, Michelle Andrea McLeod, Olimpia E. Michel, Thornton Russell Nobile, U.S. Department of Justice, Washington, DC, for Defendants.

Joseph Gerald Hebert, Alexandria, VA, Mark A. Posner, Lawyers' Committee for Civil Rights, John M. Devaney, Marc Erik Elias, Perkins Coie, LLP, Karen M. Soares, Fried, Frank, Harris, Shriver & Jacobson LLP, Washington, DC, Joaquin Avila, Law Office of Joaquin G. Avila, Kevin J. Hamilton, Perkins Coie, LLP, Seattle, WA, Jose Garza, Law Office of Jose Garza, Marisa Bono, Rebecca McNeill Couto, Mexican American Legal Defense And Educational Fund, San Antonio, TX, Renea Hicks, Law Offices of Max Renea Hicks, Robert Stephen Notzon, Gary L. Bledsoe, Law Office of Gary L. Bledsoe and Associate, Austin, TX, Nina Perales, Mexican American Legal Defense & Educational Fund, Inc., Jorge Martin Castillo, Fried, Frank, Harris, Shriver & Jacobson LLP, New York, NY, Allison Jean Riggs, Southern Coalition for Social Justice, Durham, NC, for Intervenor–Defendants.

MEMORANDUM OPINION

COLLYER, District Judge.

In the summer of 2011, the Texas legislature redrew the boundaries for voting districts in the State to account for the report of the 2010 Census that its population had grown in the last decade by more than four million people, about two-thirds of whom are Hispanic. As required by Section 5 of the Voting Rights Act, Texas has asked this Court for a declaratory judgment that its redistricting plans have neither the purpose nor the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group. The United States contends that the proposed congressional and State House districts adversely affect the voting rights of Hispanics. Various Intervenors assert the same claim as the United States, but some of them target the plans for the State Senate as well.

On November 8, 2011, this Court denied summary judgment to Texas because: 1) Texas used an improper standard and/or methodology to determine which districts afford minority voters the ability to elect their candidates of choice; and 2) material facts remain in dispute regarding whether the plans in fact comply with Section 5 of the Voting Rights Act. Order [Dkt. # 106]. This Opinion provides our analysis.

I. FACTS

A. Procedural Background

On July 19, 2011, Texas filed the instant complaint for declaratory judgment that redistricting plans ¹ it adopted to govern elections for the U.S. House of Representatives (“Congressional Plan”), the State House of Representatives (“State House Plan”), the State Senate (“State Senate Plan”) (collectively the “Plans”), and the State Board of Education complied with Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c. The United States and several of the Intervenors ² (collectively with the United States, the “Defendants”) filed answers challenging the Congressional Plan, the State House Plan, and the State Senate Plan. No one challenges the redistricting plans for the State Board of Education.³ Texas moved for summary judgment on September 14, 2011. The parties engaged in swift discovery, filed briefs and exhibits, and presented oral argument to this Court on November 2, 2011.

A three-judge court in the Western District of Texas is currently hearing constitutionalchallenges and challenges under Section 2 of the Voting Rights Act to these same redistricting Plans. Mindful of the fact that our refusal to grant preclearance would require that court to draw interim plans because of election-related deadlines in Texas, this Court issued an order denying summary judgment on all three Plans on November 8, 2011. See Dkt. # 106; see also Perez v. Texas, No. 5:11–360, Am. Order [Dkt. # 391] (W.D.Tex. Oct. 4, 2011) (consolidated action); Davis v. Perry, No. 5:11–788, Am. Order [Dkt. # 15] (W.D.Tex. Oct. 4, 2011). The Court now issues its Memorandum Opinion explaining its reasoning.

B. Statutory Background

The Voting Rights Act of 1965 (“VRA”), Pub.L. No. 89–110, 79 Stat. 437 (codified as amended at 42 U.S.C. § 1973 et seq.), was enacted to counteract attempts by states and local jurisdictions to evade the Reconstruction Amendments' prohibitions on racial discrimination in voting.⁴ Litigation and court orders had been slow and often ineffective in curbing the egregious abuses that jurisdictions had used to impede minority voters in the exercise of their constitutionally protected rights. South Carolina v. Katzenbach, 383 U.S. 301, 313–14, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). The VRA contains a set of “sterner and more elaborate measures” that Congress found necessary to fight the “insidious and pervasive evil which had been perpetrated in certain parts of our country through unremitting and ingenious defiance of the Constitution.” Id. at 309, 86 S.Ct. 803.

The VRA contains a complex remedial scheme “aimed at areas where voting discrimination has been most flagrant.” Id. at 315, 86 S.Ct. 803. These targeted, temporary remedial measures apply to a state or local political body that is a “covered” jurisdiction as defined by Section 4(b) of the VRA, i.e., one that has been found, according to a statutory formula, to have engaged in voting discrimination. See42 U.S.C. § 1973b(b); Riley v. Kennedy, 553 U.S. 406, 413, 128 S.Ct. 1970, 170 L.Ed.2d 837 (2008). Section 5 is one of those temporary remedial measures. It was enacted as “a response to a common practice in some jurisdictions of staying one step ahead of the federal courts by passing new discriminatory voting laws as the old ones had been struck down.” Beer v. United States, 425 U.S. 130, 140, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976) (quoting H.R. Rep. No. 94–196, at 57–58 (1975)).

Section 5 requires covered jurisdictions to obtain preclearance for any changes to voting qualifications, requirements, standards, practices, or procedures either administratively from the Attorney General or from the District Court for the District of Columbia. Section 5 places the burden of proof on the covered jurisdiction to show that the planned change “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color, or [membership in a language minority group].” 42 U.S.C. § 1973c(a). Subsection 1973c(b) of the statute further provides that:

Any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting that has the purpose of or will have the effect of diminishing the ability of any citizens of the United States on account of race or color, or [membership in a language minority group], to elect their preferred candidates of choice denies or abridges the right to vote....

Id. § 1973c(b). The goal of subsection 1973c(b) “is to protect the ability of such citizens to elect their preferred candidates of choice.” Id. § 1973c(d). In addition, the statute further explains that “[t]he term ‘purpose’ ... shall include any discriminatory purpose.” Id. § 1973c(c). No change to a voting practice or procedure, including an electoral redistricting plan, see Miller v. Johnson, 515 U.S. 900, 905–06, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995), may be implemented until preclearance is granted. Reno v. Bossier Parish School Bd. ( Bossier I ), 520 U.S. 471, 477–78, 117 S.Ct. 1491, 137 L.Ed.2d 730 (1997).

Section 5 originally was intended to be in effect for only five years, but Congress has re-authorized it four times, most recently in 2006 for twenty-five years.⁵Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 129 S.Ct. 2504, 2510, 174 L.Ed.2d 140 (2009). During the 2006 reauthorization, Congress amended the statute to clarify what it meant by “effect” and “purpose” under Section 5, Shelby Cnty. v. Holder, 811 F.Supp.2d 424, 436–38 (D.D.C.2011), and added language to emphasize that a Section 5 inquiry must focus on whether a proposed change will “diminish [ ]” the ability of minority voters “to elect their preferred candidates of choice.” 42 U.S.C. § 1973c(b), (d); H.R. Rep. No. 109–478, at 70–71, 2006 U.S.C.C.A.N. 618, 670–71 (2006) (“Thus, in amending Section 5 to add a new subsection (b), the Committee makes clear that in making preclearance determinations under Section 5, the comparative ‘ability [of the minority community] to elect preferred candidates of choice’ is the relevant factor to be evaluated ....” (alterations in original)).⁶ Speaking broadly, Congress proscribed “any” change that would have such an “effect” because such a change “denies or abridges the right to vote.” 42 U.S.C. § 1973c(b). Thus, a covered jurisdiction will not meet the requirements of Section 5 when a proposed change to a voting procedure or plan would have a retrogressive effect on the “ability” of minority voters to elect candidates of their choice. Id.

The 2006 Amendments also proscribe “any” change that “has the purpose of” diminishing the ability of minority voters to elect candidates of their choice. Congress sought to ensure that “purpose” was no longer limited to a “retrogressive purpose,” as the Supreme Court had held in Reno v. Bossier ( Bossier II ), 528 U.S. 320, 120 S.Ct. 866, 145 L.Ed.2d 845 (2000), see42 U.S.C. § 1973c(b)-(c); H.R.Rep. No. 109–478, at 71, but covered more broadly “ any discriminatory purpose.” 42 U.S.C. § 1973c(c) (emphasis added).

Defendants challenge both the effect of and the purpose behind Texas' redistrictingPlans. In particular, this lawsuit focuses on the Plans' effect on Hispanic and Black voters in Texas and whether these Plans were enacted with a discriminatory purpose aimed...