Case Document

Abbott v. Perez Brief As Appellee Supporting Appellants

Date

Monday, February 26, 2018

Document Type

Briefs - Miscellaneous

Attachments

Abbott v. Perez Brief as Appellee Supporting Appellants

Nos. 17-586 and 17-626

In the Supreme Court of the United States

GREG ABBOTT, GOVERNOR OF TEXAS, ET AL., APPELLANTS

SHANNON PEREZ, ET AL.

ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

BRIEF FOR THE UNITED STATES AS APPELLEE IN SUPPORT OF APPELLANTS

NOEL J. FRANCISCO
Solicitor General Counsel of Record

JOHN M. GORE
Acting Assistant Attorney General

JEFFREY B. WALL

EDWIN S. KNEEDLER
Deputy Solicitors General

GREGORY B. FRIEL
Deputy Assistant Attorney General

JEFFREY E. SANDBERG
Assistant to the Solicitor General

BONNIE I. ROBIN-VERGEER
Attorney
Department of Justice

Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

The United States will address the following questions:

1. Whether this Court may exercise jurisdiction over these appeals.
2. Whether the district court erred in concluding that the Texas Legislature acted with a
racially discriminatory purpose in adopting districts in its 2013 congressional and
State House plans that the district court had included in its own 2012 interim redistricting plans
and had provisionally determined were not unlawful.
3. Whether the district court erred in concluding that Congressional District 35 in the 2013
congressional plan violated the Equal Protection Clause of the Four- teenth Amendment.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1
Jurisdiction ............................................................................ 2
Constitutional and statutory provisions involved...................... 2
Statement ...................................................................................... 2
Summary of argument ............................................................... 16
Argument:
I. This Court may exercise jurisdiction over these appeals............................................................................ 20
II. The district court erred in its analysis of intentional vote dilution in the 2013 congressionaland State House plans......................... 24
A. Plaintiffs’ claims of intentional vote dilution require them to show that the 2013 Legislature acted with a discriminatory racial purpose .......... 24
B. The district court incorrectly presumed discriminatory intent and shifted the burden of proof to the state ............................................ 31
C. This Court should reject the basis for the district court’s findings of intentional discrimination .......................................................... 37
1. Application of a strong presumption of good faith is appropriate in this case.............. 38
2. Neither the district court nor plaintiffs’ filings to date in this Court have identified sufficient evidence to rebut the strong presumption of good faith ................................ 40
III. The district court erred in concluding that Congressional District 35 is an unconstitutional racial gerrymander..................................... 44
Conclusion ................................................................................... 49

(III)

TABLE OF AUTHORITIES

Cases: Page

Abrams v. Johnson, 521 U.S. 74 (1997)............................ 6
Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015) ..........................................6, 44, 45
Bartlett v. Strickland, 556 U.S. 1 (2009) .................... 5, 10
Bethune-Hill v. Virginia State Bd. of Elections, 137 S. Ct. 788 (2017) ...................................... 6, 27, 45, 47
Burns v. Richardson, 384 U.S. 73 (1966) ............................ 29
Bush v. Vera, 517 U.S. 952 (1996).................................. 6
Carson v. American Brands, Inc., 450 U.S. 79 (1981) ......................................................... 17, 20
Chen v. City of Houston, 206 F.3d 502 (5th Cir. 2000), cert. denied, 532 U.S. 1046 (2001) ............................... 34, 35
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ............................................................................. 34
City of Mobile v. Bolden, 446 U.S. 55 (1980) ................ 28, 32
Coleman v. Court of Appeals, 566 U.S. 30 (2012)............... 27
Cooper v. Harris, 137 S. Ct. 1455 (2017) ................ passim
Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1998) .................. 34
Davis v. Abbott, 781 F.3d 207 (5th Cir.), cert. denied, 136 S. Ct. 534 (2015) ............................................................. 7
Garza v. County of Los Angeles, 918 F.2d 763 (9th Cir. 1990), cert. denied, 498 U.S. 1028 (1991) ........ 4
Growe v. Emison, 507 U.S. 25 (1993) .................................... 3
Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271 (1988).............................................................. 20
Gunn v. University Comm. to End the War in Viet Nam, 399 U.S. 383 (1970)................................................... 23
Hayden v. Paterson, 594 F.3d 150 (2d Cir. 2010) ........ 30, 34
Hunt v. Cromartie, 526 U.S. 541 (1999)...................................5, 17, 25, 26, 27, 37

Cases—Continued: Page

Hunter v. Underwood, 471 U.S. 222 (1985) ........................ 33
Johnson v. De Grandy, 512 U.S. 997 (1994) .............. 5, 38
Johnson v. Governor, 405 F.3d 1214 (11th Cir.), cert. denied, 546 U.S. 1015 (2005) ..................................... 34
Jones v. City of Lubbock, 727 F.2d 364 (5th Cir. 1984)...... 35
Kirksey v. Board of Supervisors, 554 F.2d 139 (5th Cir.), cert. denied, 434 U.S. 968 (1977) ..................... 35
Lawyer v. Department of Justice, 521 U.S. 567 (1997)........................................................ 22, 29
League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006).............................................. 5, 29, 30, 37
McCleskey v. Kemp, 481 U.S. 279 (1987) ............................ 28
Miller v. Johnson, 515 U.S. 900 (1995)....................... passim
Mississippi State Chapter, Operation PUSH, Inc. v. Mabus, 932 F.2d 400 (5th Cir. 1991) ................................. 29
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).............................................................. 27
Palmer v. Thompson, 403 U.S. 217 (1971) .......................... 33
Perry v. Perez, 565 U.S. 388 (2012)............................. passim
Personnel Adm’r v. Feeney, 442 U.S. 256 (1979) ............... 25
Purcell v. Gonzalez, 549 U.S. 1 (2006)................................. 23
Reno v. Bossier Parish Sch. Bd., 520 U.S. 471 (1997)............................................ 25, 26, 28, 36
Ricci v. DeStefano, 557 U.S. 557 (2009) .............................. 42
Rogers v. Lodge, 458 U.S. 613 (1982) ....................4, 25, 26
Schaffer v. Weast, 546 U.S. 49 (2005) .................................. 26
Shaw v. Hunt, 517 U.S. 899 (1996) ................................... 6
Shaw v. Reno, 509 U.S. 630 (1993) ............................. 5, 26
Shelby County v. Holder, 133 S. Ct. 2612 (2013) ...................................................................3, 12, 27

Cases—Continued: Page

Texas v. United States, 887 F. Supp. 2d 133 (D.D.C. 2012), vacated and remanded, 133 S. Ct. 2885 (2013)........................................... 11
Thornburgh v. Gingles, 478 U.S. 30 (1986) ............... 4, 47, 48
Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977) ..................25, 26, 27, 28, 29
Voinovich v. Quilter, 507 U.S. 146 (1993) .................. 4, 26
Washington v. Davis, 426 U.S. 229 (1976) .................... 25, 27
Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) .................. 30
Whitcomb v. Chavis, 403 U.S. 124 (1971) ......................... 23
Whitcomb v. Davis, 403 U.S. 914 (1971).............................. 23
Wise v. Lipscomb, 437 U.S. 535 (1978) .................... 22, 29, 42

Constitutions and statutes:

U.S. Const. Amend. XIV (Equal Protection Clause) ............................... 3, 4, 5, 44, 46
Voting Rights Act of 1965, 52 U.S.C. 10301 et seq. (Supp. III 2015)..................................................................... 3
52 U.S.C. 10301 (§ 2) ......................................................... 3
52 U.S.C. 10301(a) ............................................................. 4
52 U.S.C. 10301(b) ............................................................. 4
52 U.S.C. 10302(c) (§ 3(c))............................................... 12
52 U.S.C. 10304(a) (§ 5)..................................................... 7
52 U.S.C. 10308(d) ............................................................. 3
28 U.S.C. 1253 ........................................................ 2, 16, 20, 23
28 U.S.C. 1292(a)(1) ......................................................... 17, 20
28 U.S.C. 2284(a) ....................................................... 17, 20, 23
Tex. Const. Art. III:
§ 5(a) ................................................................................. 44
§ 24(b) ............................................................................... 44
§ 40 .................................................................................... 44

VII

Statutes—Continued: Page

Tex. Elec. Code § 14.001 (West 2017).................................. 21

Miscellaneous:

S. Rep. No. 417, 97th Cong., 2d Sess. (1982)................ 4, 5

In the Supreme Court of the United States

Nos. 17-586 & 17-626

GREG ABBOTT, GOVERNOR OF TEXAS, ET AL., APPELLANTS

SHANNON PEREZ, ET AL.

ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

BRIEF FOR THE UNITED STATES AS APPELLEE IN SUPPORT OF APPELLANTS

OPINIONS BELOW

In No. 17-586, the district court’s order on Texas’s 2013 congressional redistricting plan
(Plan C235) (C.J.S. App. 3a-119a)¹ is reported at 274 F. Supp. 3d 624. That order incorporates
the court’s prior opinion on the 2011 congressional redistricting plan (Plan C185)
(C.J.S. App. 120a-366a; see C.J.S. App. 14a n.13), which is reported at 253 F. Supp. 3d 864.
In No. 17-626, the district court’s order on Texas’s 2013 State House redistricting plan (Plan
H358) (H.J.S. App. 3a-87a) is reported at 267 F. Supp. 3d 751. That order incorporates the court’s
prior opinion on the 2011 State House redistricting plan (Plan H283) (H.J.S. App. 88a-299a; see
H.J.S. App. 7a n.5), which is reported at 250 F. Supp. 3d 123.

____________
¹ Citations to “C.J.S.” refer to filings in No. 17-586, while citations to “H.J.S.” refer to
filings in No. 17-626.
(1)

JURISDICTION

In No. 17-586, the order of the district court was en- tered on August 15, 2017. Appellants filed
their notice of appeal on August 18, 2017 (C.J.S. App. 1a-2a). In No. 17-626, the order of the
district court was entered on August 24, 2017. Appellants filed their notice of appeal on August
28, 2017 (H.J.S. App. 1a-2a). Appellants invoke this Court’s jurisdiction under 28 U.S.C.
1253. This Court has postponed further consideration of the question of jurisdiction pending a
hearing on the merits.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Pertinent constitutional and statutory provisions are reproduced in the appendices to the
jurisdictional state- ments. See C.J.S. App. 426a-428a; H.J.S. App. 437a-439a.

STATEMENT

These appeals concern redistricting plans enacted by the Texas Legislature in 2013 for the State’s
House of Representatives (the State House plan) and for the State’s Representatives in the
United States House of Representatives (the congressional plan). The 2013 plans were based,
entirely or almost entirely, on interim remedial plans that a three-judge court of the District
Court for the Western District of Texas adopted in 2012, after that court had enjoined use
of the Legislature’s prior 2011 redistricting plans pending separate preclearance proceedings in
the District Court for the District of Columbia. In the decisions under review, the district
court invalidated several districts in the 2013 congressional and State House plans on
the grounds that they were intentionally discriminatory, were ra- cially gerrymandered, or
caused unlawful vote dilution

in violation of the Equal Protection Clause of the Four- teenth Amendment or the Voting Rights
Act of 1965 (VRA), 52 U.S.C. 10301 et seq. (Supp. III 2015).²

The United States intervened in the Texas district court to assert claims that the 2011 plans were
enacted with racially discriminatory intent in violation of Section 2 of the VRA, 52 U.S.C.
10301. The United States has not brought any claims challenging the 2013 congressional or
State House plans. The United States nonetheless retains a significant interest in
these appeals because the United States, through the Attorney General, has primary
responsibility for enforcing the VRA. See 52 U.S.C. 10308(d). Accordingly, the United States
has a substantial interest in the proper interpretation of the VRA and the related constitutional
protection against the unjustified use of race in redistricting.

1. “[T]he Constitution leaves with the States pri- mary responsibility for apportionment of
their federal congressional and state legislative districts.” Growe v. Emison, 507 U.S. 25, 34
(1993). States have substantial discretion to make the judgments and compromises necessary
to balance the complex array of “competing interests” involved in redistricting. Miller v.
Johnson, 515 U.S. 900, 915 (1995). At the same time, both the Constitution and federal statutes
impose constraints on redistricting in order to prevent racial discrimination.

a. Section 2 of the VRA imposes a “permanent, nationwide ban on racial discrimination in
voting.” Shelby County v. Holder, 133 S. Ct. 2612, 2631 (2013). Section 2 prohibits any “voting
qualification or prerequisite to voting or standard, practice, or procedure” that “results in a
denial or abridgement of the right of any citizen of

___________

² All references to Sections of the VRA are found in the 2015 Supplement of the United States
Code.

the United States to vote on account of race or color.” 52 U.S.C. 10301(a). As amended in 1982,
Section 2 provides that a violation may be “established if, based on the totality of
circumstances, it is shown that the [elec- tion] processes * * * in the State or political
subdivision are not equally open to participation by members of a [protected] class [who] have
less opportunity than other members of the electorate to participate in the political process
and to elect representatives of their choice.” 52 U.S.C. 10301(b).

Both Section 2 of the VRA and the Equal Protection Clause of the Fourteenth Amendment prohibit
intentional “vote dilution.” Rogers v. Lodge, 458 U.S. 613, 617, 621 (1982) (Fourteenth
Amendment); Garza v. County of Los Angeles, 918 F.2d 763, 766 (9th Cir. 1990)
(Section 2), cert. denied, 498 U.S. 1028 (1991); S. Rep. No. 417, 97th Cong., 2d Sess. 27 & n.108
(1982) (Senate Report) (same). Vote dilution is caused “either ‘by the dispersal of [minority
voters] into districts in which they constitute an ineffective minority of voters or from the
concentration of [minority voters] into districts where they constitute an excessive
majority.’ ” Voinovich v. Quilter, 507 U.S. 146, 154 (1993) (quoting Thornburgh v. Gingles, 478 U.S. 30, 46 n.11 (1986)).

In addition, vote dilution without a finding of discriminatory intent may violate Section
2 under its “results” test. This Court has identified three “preconditions” for a
vote-dilution claim under that test: (1) The minority group must be “sufficiently large and
geographically compact to constitute a majority in a single- member district,” (2) the minority
group must be “politically cohesive,” and (3) the majority must “vote[] sufficiently as a bloc”
to usually “defeat the minority’s preferred candidate.” Gingles, 478 U.S. at 50-51; see

Cooper v. Harris, 137 S. Ct. 1455, 1470 (2017). For single-member districting schemes,
the first precondition also requires showing a “possibility of creating more than the
existing number of reasonably compact districts with a sufficiently large minority population to
elect candidates of its choice.” Johnson v. De Grandy, 512 U.S. 997, 1008 (1994). If a party
establishes those preconditions, a court then must “consider the ‘totality of circumstances’ to
determine whether members of a racial group have less opportunity than do other members of the
electorate.” League of United Latin Am. Cit- izens v. Perry, 548 U.S. 399, 425-426 (2006)
(LULAC) (quoting De Grandy, 512 U.S. at 1011-1012); see Senate Report 27-29 (articulating factors to
consider). The Court has reserved the question of how “intentional dis- crimination affects the
Gingles analysis” for a Section 2 claim. Bartlett v. Strickland, 556 U.S. 1, 20 (2009) (plu-
rality opinion).

b. The Equal Protection Clause, in addition to pro- hibiting intentional vote dilution,
forbids the unjusti- fied, predominant use of race in drawing districts, known as
“unconstitutional racial gerrymandering.” Shaw v. Reno, 509 U.S. 630, 641 (1993) (Shaw I). Such
a claim is “ ‘analytically distinct’ from a vote dilution claim.” Miller, 515 U.S. at 911
(citation omitted). In adjudicating a racial-gerrymandering claim, the court must determine
whether race was “the predominant fac- tor motivating the legislature’s decision to place a signif-
icant number of voters within or without a particular district”—i.e., whether race is the
“dominant and con- trolling rationale” for a district’s lines. Id. at 913, 916. If so, that use
of race comports with the Equal Protection Clause only if it is narrowly tailored to serve a
compel- ling state interest. Id. at 920; see Hunt v. Cromartie,

526 U.S. 541, 547 (1999) (“[S]trict scrutiny applies if race was ‘the predominant factor’
motivating the legislature’s districting decision.”).

This Court has “long assumed” that States have a compelling interest in complying with Section 2 of
the VRA. Cooper, 137 S. Ct. at 1469; see, e.g., Abrams v. Johnson, 521 U.S. 74, 91 (1997); Shaw
v. Hunt, 517 U.S. 899, 915 (1996) (Shaw II); Bush v. Vera, 517 U.S. 952, 978 (1996) (plurality opinion);

Bush, 517 U.S. at 990 (O’Connor, J., concurring).³ The predominant use of race in an effort to comply with the VRA will survive strict scrutiny so long as a State has “a ‘strong basis in evidence’ in support of the (race-based) choice that it has
made.” Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1274 (2015) (citation
omitted). A “strong basis in evidence” exists so long as legislators “have good reasons to believe
such use [of race] is required, even if a court does not find that the actions were necessary for
statutory compliance.” Ibid. (citation omitted). That standard affords States “ ‘breathing
room’ to adopt rea- sonable compliance measures that may prove, in perfect hindsight, not to have
been needed.” Cooper, 137 S. Ct. at 1464 (quoting Bethune-Hill v. Virginia State Bd. of Elections,
137 S. Ct. 788, 802 (2017)).

2. This litigation arises from redistricting under- taken by Texas following the 2010 Census.
The Census showed that Texas had gained more than four million

__________

³ This Court also has repeatedly assumed that States have a com- pelling interest in complying
with Section 5 of the VRA. See, e.g., Bethune-Hill v. Virginia State Bd. of Elections, 137 S. Ct.
788, 801 (2017) (rejecting racial-gerrymandering claim where the “State had sufficient grounds to
determine that the race-based calculus it em- ployed * * * was necessary to avoid violating §
5”).

new residents, which entitled it to four additional Rep- resentatives in the U.S. House of
Representatives. See Perry v. Perez, 565 U.S. 388, 390 (2012) (per curiam).

a. In June 2011, the Texas Legislature enacted re- districting plans for, as relevant here, the
State House (Plan H283) and the U.S. congressional delegation (Plan C185).⁴ At that time, Section
5 of the VRA required the State to obtain preclearance before implementing those plans, a process
that required it to show that the plans “neither ha[d] the purpose nor w[ould] have the effect” of
discriminating on the basis of race. 52 U.S.C. 10304(a). Texas sought preclearance for its 2011
plans by filing a declaratory-judgment action in the District Court for the District of
Columbia in July 2011.

Meanwhile, in June and July 2011, various plaintiffs brought Section 2 and constitutional claims
against the 2011 congressional and State House plans, which were consolidated before a three-judge
district court in the Western District of Texas. That court enjoined use of the 2011 plans
and—lacking any final decision on pre- clearance from the D.C. district court—adopted interim
redistricting plans to govern the 2012 elections. In do- ing so, the district court believed that
it “was not re- quired to give any deference to the Legislature’s en- acted plan[s].”
Perry, 565 U.S. at 396 (citation and in- ternal quotation marks omitted).

__________

⁴ The Legislature also enacted a redistricting plan for the State Senate, which led to separate
litigation before the same three-judge court. See Davis v. Perry, No. 11-788 (W.D. Tex. Sept.
22, 2011). Following adoption of a revised plan in 2013, the State Senate liti- gation was
dismissed as moot. See Davis v. Abbott, 781 F.3d 207, 209 (5th Cir.), cert. denied, 136 S. Ct. 534
(2015). The State Senate plan is not at issue in these appeals.

This Court vacated the interim plans and remanded for further proceedings. Perry, 565 U.S. at
399. The Court agreed that, absent preclearance of the State’s 2011 plans, it was
necessary for the district court to de- vise interim plans for the 2012 elections. Id. at 392.
The Court concluded, however, that the district court had erred “[t]o the extent [it] * * *
substituted its own con- cept of the ‘collective public good’ ” in formulating in- terim
relief. Id. at 396. The Court concluded that “[the] district court should take guidance from the
State’s re- cently enacted plan,” to the extent the legislative poli- cies reflected in that plan
“ ‘do not lead to violations of the Constitution or the Voting Rights Act.’ ” Id. at 393 (citation
omitted).

This Court then articulated legal standards for de- vising interim plans on remand. When
portions of a State’s enacted plan are alleged to violate the Constitu- tion or Section 2 of the
VRA, “a district court should still be guided by that plan, except to the extent those legal
challenges are shown to have a likelihood of success on the merits.” Perry, 565 U.S. at 394. When
portions of the State’s enacted plan are the subject of a Section 5 preclearance proceeding
elsewhere that has not yet been completed, the district court must “tak[e] guid- ance
from a State’s policy judgments unless they reflect aspects of the state plan that stand a
reasonable proba- bility of failing to gain § 5 preclearance.” Id. at 395. The Court reiterated
that the district court “must, of course, take care not to incorporate into the interim plan any
legal defects in the state plan.” Id. at 394.

b. On remand, in February 2012, the Texas district court ordered the use of revised interim plans
for the 2012 elections (Plans C235 and H309). C.J.S. App. 367a- 424a; H.J.S. App. 300a-315a.
Both were compromise

plans accepted by the State and certain plaintiffs. C.J.S. App. 6a, 368a, 394a-395a.

With respect to congressional districting, Plan C235 made significant changes to nine districts as
compared to the Legislature’s 2011 plan. But it made no changes to the two congressional
districts now at issue: CD27, a majority-Anglo district covering Nueces County (which includes
Corpus Christi) and points northward; and CD35, a majority-Latino district extending from
Travis County (Austin) to Bexar County (San Antonio). C.J.S. App. 408a, 419a.

Before 2011, CD27 had been a majority-Latino dis- trict that included Nueces County. The 2011
version of CD27 still included the concentration of Latino voters in Nueces County, but placed them
in a majority-Anglo district. C.J.S. App. 417a. Various plaintiffs raised Sec- tion 2 claims and
Section 5 arguments against the new CD27 (id. at 388a, 417a-423a), but the district court con-
cluded that those challenges were unlikely to succeed under the standards articulated in
Perry. The court found that, regardless of how CD27 was configured, “only 7 reasonably
compact Latino opportunity districts c[ould] be drawn in compliance with § 2” in the “South and
West Texas area.” Id. at 418a, 421a. And the court explained that Plan C235 would restore a
different district—CD23—as a Latino opportunity district, thereby ensuring that the plan
had seven such districts. The court thus concluded that Plan C235 “substantially addresses the § 2
violation,” and retention of the 2011 version of CD27 was appropriate in order to “respect[] the
Legislature’s policy decisions concerning the place- ment of Nueces County.” Id. at 421a. The
court also did not identify any retrogression concerns with CD27 un- der Section 5. Cf. id. at
399a, 422a-423a.

As to CD35, one group of private plaintiffs urged the district court to find it a proper Section 2
Latino oppor- tunity district, while others urged the court to reject it as an unconstitutional
racial gerrymander or as intentionally vote dilutive. The court concluded that the
racial- gerrymandering claim was a “close call,” C.J.S. App. 409a, but found that the challenge was
likely without merit, both because of inadequate evidence that race had predomi- nated in the
creation of CD35 and because there was no substantial likelihood that CD35 would fail strict scru-
tiny in any event. Id. at 415a. The court also found that plaintiffs had not shown that CD35 was
created for the discriminatory purpose of “dismantling” a prior “crosso- ver” district (CD25)
rather than because of “partisan pol- itics.” Ibid.⁵

With respect to the State House, in ordering the use of Plan H309, the district court made
“substantial[]” changes to 21 districts. H.J.S. App. 314a. But Plan H309 retained 122
State House districts without change, including most of those now before this Court: HD54
and HD55 in Bell County; HD32 and HD34 in Nueces County; and HD103, HD104, and HD105 in
Dal- las County. Id. at 303a n.4. The court explained that by keeping those districts unchanged,
it was “[f ]ollowing [this] Court’s direction to leave undisturbed any district that is free from
legal defect.” Id. at 303a.

_________

⁵ A “crossover” district is “one in which minority voters make up less than a majority of the
voting-age population,” but in which the “minority population, at least potentially, is large
enough to elect the candidate of its choice with help from voters who are members of the majority
and who cross over to support the minority’s pre- ferred candidate.” Bartlett, 556 U.S. at 13
(plurality opinion). A “coalition” district is one in which “two minority groups form a coa-
lition to elect the candidate of the coalition’s choice.” Ibid.

Although the district court found that Plans C235 and H309 satisfied this Court’s standards
in Perry, it noted that its decisions were preliminary and not final rulings on the merits of any
claim concerning the 2011 plans. C.J.S. App. 367a; H.J.S. App. 315a. The 2012 elections
were conducted under Plans C235 and H309.

c. In August 2012, the D.C. district court denied pre- clearance to Texas’s 2011 congressional and
State House redistricting plans. See Texas v. United States, 887 F. Supp. 2d 133 (three-judge
court), vacated and remanded, 133 S. Ct. 2885 (2013). As to the congressional plan, the court
concluded that Texas had failed to meet its burden under Section 5 of the VRA to prove an absence
of dis- criminatory intent. Id. at 159-166. As to the State House plan, the court concluded that
Texas had failed to meet its burden under Section 5 to establish the absence of retrogressive
effect, and also stated that the record sug- gested that that effect “may not have been
accidental.” Id. at 178; see id. at 166-178. The State appealed the de- nial of preclearance to
this Court.

d. In March 2013—while Texas’s preclearance ap- peal was pending, and while the
litigation below was held in abeyance—the Texas Attorney General pro- posed to the
Legislature that it enact the district court’s 2012 interim maps as the State’s permanent
redistrict- ing plans. C.J.S. App. 429a-435a. He observed that the 2011 plans had been found by
the D.C. district court to be “tainted by evidence of discriminatory purpose,” and explained that
“the best way to remedy the violations * * * is to adopt the court-drawn interim plans as the State’s

permanent redistricting maps.” Id. at 432a. In May 2013, the Texas Governor called the Legislature

into special session to consider that proposal. C.J.S. Supp. App. 231a.

On June 23, 2013, the Texas Legislature passed bills adopting new redistricting plans. The Texas
Legisla- ture adopted without alteration the court-ordered con- gressional interim map (Plan
C235) as its permanent congressional plan. C.J.S. App. 9a. The Legislature made minor
changes to the court-ordered State House interim map and then enacted that map as its perma- nent
State House plan (Plan H358). Ibid. The 2013 plans were signed into law on June 26, 2013,
and became effective in September 2013. C.J.S. Supp. App. 232a.

e. On June 25, 2013, this Court issued its decision in Shelby County v. Holder, 133 S. Ct. 2612
(2013), holding that the coverage formula in Section 4(b) of the VRA was unconstitutional and
could “no longer be used as a basis for subjecting jurisdictions to preclearance” under Section
5. Id. at 2631. This Court then vacated the D.C. district court’s judgment denying preclearance,

133 S. Ct. 2885, and on remand, that court granted Texas’s motion for voluntary dismissal.

3. a. Litigation in the Texas district court resumed. The court allowed plaintiffs to amend their
complaints to challenge the newly enacted 2013 plans and, with re- spect to existing claims against
the 2011 plans, to seek relief under Section 3(c) of the VRA, 52 U.S.C. 10302(c).
D. Ct. Doc. 886, at 8-19 (Sept. 6, 2013).⁶ The court or- dered, however, that the
Legislature’s newly enacted 2013 plans (Plans C235 and H358) would be used for the 2014
elections. Id. at 21-26. The court noted that it had

_________

⁶ Section 3(c), known as the VRA’s “bail-in” provision, permits a district court, upon a finding
that “violations of the [F]ourteenth or [F]ifteenth [A]mendment justifying equitable relief have
occurred within the territory of [a] State or political subdivision,” to require the defendant to
seek approval of future voting changes through a regime similar to Section 5 preclearance. 52
U.S.C. 10302(c).

“already” conducted “a preliminary injunction analysis” on plaintiffs’ challenges in its
decisions adopting the 2012 interim plans, id. at 22, and it found that the sole “new legal
challenge” brought by plaintiffs (concerning HD90, which had been modified by the 2013
Legisla- ture) was not likely to succeed, id. at 23-24. The court acknowledged it still needed to
“reach a final decision on the merits of all claims,” but concluded that it was “impossible to
reach that decision prior to the various deadlines for the 2014 elections.” Id. at 22.

The United States intervened in the litigation. D. Ct. Doc. 904 (Sept. 24, 2013). In its
complaint, the United States did not challenge the 2013 plans, but instead ar- gued that the
2011 plans (Plans C185 and H283) had been adopted with racially discriminatory intent in vio-
lation of Section 2 and that Section 3(c) relief was war- ranted. D. Ct. Doc. 907, at 14
(Sept. 25, 2013). The United States’ complaint asserted only intentional vote- dilution claims,
and did not raise any Section 2 results claims.

b. In July and August 2014, the Texas district court conducted bench trials on the claims against
the 2011 congressional and State House plans. C.J.S. App. 13a.

In October 2015, while a decision on the 2011 plans was still pending, plaintiffs sought a
preliminary injunc- tion barring the use of the 2013 plans for the 2016 elec- tions. The court
denied that request, explaining that the 2013 plans were “the product of the [c]ourt’s preliminary
injunction analysis” in 2012, and concluding that “scruti- nizing the same plan[s] under the same
preliminary in- junction analysis would [not] produce a different out- come today.” D. Ct.
Doc. 1324, at 5-6 (Nov. 6, 2015). The 2013 plans were therefore used for the 2016 elections.

c. Two-and-a-half years after trial, in various orders issued in March through May 2017, the
district court held by a 2-1 vote that Texas had violated the VRA, the Constitution, or both in
drawing various districts in the 2011 plans. C.J.S. App. 120a-366a; H.J.S. App. 88a- 299a;
see C.J.S. Supp. App. 1a-490a (separate findings of fact); H.J.S. Supp. App. 1a-309a (same).
As relevant here, with respect to the 2011 congres- sional plan, the district-court majority found
that CD27 and CD35 were unlawful (notwithstanding the district court’s prior provisional
determinations to the contrary). C.J.S. App. 161a-195a, 330a. As to CD27, the court

concluded that the placement of Hispanic voters in Nueces County into a majority-Anglo district

“had the effect and was intended to dilute their opportunity to elect their candidate of choice.” Id. at 330a. The court
stated that, although only “seven compact Latino opportunity districts could be drawn in South/West
Texas,” “Nueces County Hispanics could be included in one of those dis- tricts for § 2 purposes.”
Id. at 181a. As to CD35, the court concluded that the district was an unconstitutional racial
gerrymander, finding that race had predominated in its construction and that the district could not
survive strict scrutiny. Id. at 175a. Judge Smith dissented, both on the ground that the
challenges to the 2011 plans were moot and on the merits. Id. at 331a-366a.

With regard to the 2011 State House plan, the district-court majority found that plaintiffs had proven

intentional vote dilution on a statewide basis and also in certain regions. H.J.S. App. 192a, 275a. The specific districts invalidated
because of discriminatory intent in- cluded those in Nueces County (HD32 and HD34), Bell County
(HD54 and HD55), and Dallas County (HD103, HD104, and HD105). Id. at 126a-137a, 164a-173a, 178a-

183a, 275a. Judge Smith again dissented on both moot- ness and the merits. Id. at 277a-299a.
After issuing those decisions on the 2011 plans, the district court held a trial on the 2013 plans
in July 2017. Because the United States asserted no claims against the 2013 plans, it did not
participate in the trial.

d. In decisions issued in August 2017, the district court invalidated several districts
in the State’s 2013 congressional and State House plans. See C.J.S. App. 3a-119a; H.J.S. App.
3a-87a.

As relevant here, the district court held that every district it had found to be intentionally
discriminatory or racially gerrymandered in the 2011 plans was also necessarily unlawful in
the 2013 plans “where th[e] dis- trict lines remain[ed] unchanged.” C.J.S. App. 46a; see id. at
35a; H.J.S. App. 6a. The court acknowledged that the 2013 Legislature had effectively
“adopted the [c]ourt’s [interim] plans” from 2012, but reasoned that that action “d[id] not
change” the analysis because the Legislature “did not engage in a deliberative process to ensure
that the 2013 plans cured any taint from the 2011 plans.” C.J.S. App. 40a. Based on that
conclusion, the court suggested that the Legislature had enacted the 2013 plans “as part of a
litigation strategy” designed to “insulate” the State’s actions from further challenge,
rather than as an attempt to “adopt legally compliant plans free from discriminatory taint.” Id.
at 40a-41a. Thus, as to the 2013 congressional plan, the district court invalidated CD27
and CD35, see id. at 117a-118a, and as to the 2013 State House plan, the court invali- dated HD32
and HD34 (Nueces County), HD54 and

HD55 (Bell County), and HD103, HD104, and HD105 (Dallas County), see H.J.S. App. 84a-85a.⁷
Concluding that these violations “must be reme- died,” C.J.S. App. 117a; see H.J.S. App.
84a-85a, the dis- trict court directed the Texas Attorney General to ad- vise the court “within
three business days” whether the Texas Legislature would “take up redistricting in an ef- fort to
cure these violations.” C.J.S. App. 118a; H.J.S. App. 86a. The court further ordered that, absent
such legislative redistricting, it would hold “hearing[s] to consider remedial plans” in
early September 2017. Ibid. Texas sought emergency relief from this Court, which stayed the
district court’s orders invalidating the 2013 redistricting plans. Order, No. 17A225 (Sept. 12,
2017); Order, No. 17A245 (Sept. 12, 2017). Upon consid- eration of Texas’s jurisdictional
statements, this Court ordered briefing and postponed further consideration of the question of
jurisdiction pending hearing of the case on the merits. Order, No. 17-586 (Jan. 12, 2018); Order,
No. 17-626 (Jan. 12, 2018).

SUMMARY OF ARGUMENT

I. This Court possesses jurisdiction under 28 U.S.C. 1253, which allows direct appeals to this
Court from an

________

⁷ The district court also invalidated HD90—a district newly drawn in the 2013 State House plan—as
a racial gerrymander, and held that HD32 and HD34 were unlawful for the additional reason that they
violated the Section 2 results test. See H.J.S. App. 85a. In addition, the court held that CD27
violated the Section 2 results test. C.J.S. App. 112a; see also id. at 180a-195a. The United States takes no position on those rulings.
The United States did not assert any results claims in this litigation, and HD90 was revised in
2013 and thus does not involve the legislative adoption of a district provision- ally approved by
the district court—the principal issue addressed by the United States in this brief.

order granting or denying an interlocutory or perma- nent injunction in three-judge district-court
actions un- der 28 U.S.C. 2284(a) challenging the constitutionality of congressional districts or
statewide legislative appor- tionments. This Court has made clear in the analogous context of 28
U.S.C. 1292(a)(1) that even an order not styled as the grant or denial of an injunction is appeal-
able if it has the “practical effect” of granting or deny- ing an injunction, “might have a
‘serious, perhaps irrep- arable, consequence,’ ” and “can be ‘effectually chal- lenged’ only
by immediate appeal.” Carson v. Ameri- can Brands, Inc., 450 U.S. 79, 84 (1981). Under the un-
usual facts of this case, the district court’s orders meet those standards. The orders had the
effect of prohibit- ing further use of the State’s 2013 congressional and State House
plans; they had the serious consequence of requiring statewide redistricting on the eve of prepara-
tions for the 2018 election cycle; and, under the timing exigencies present here, the orders could
only be effec- tually challenged by immediate appeal.

II. The district court committed errors of law in finding that the Texas Legislature engaged in inten

-tional vote dilution in adopting Congressional District 27 and State House Districts 32, 34, 54, 55, 103, 104, and 105 in the 2013
plans, all of which were identical to districts contained in the court’s own 2012 interim plans.

A. The principles for adjudicating claims of inten- tional vote dilution are well
established. A legislative enactment may be invalidated on that basis only if the plaintiffs show
that the legislature acted with a discrim- inatory purpose. In the redistricting context, as
else- where, courts must accord a “presumption of good faith [to] legislative enactments.” Hunt
v. Cromartie, 526 U.S. 541, 553 (1999) (citation omitted). Courts must not

infer discriminatory racial intent solely from disparate racial effects, and a finding of past
intentional discrimi- nation standing alone generally cannot support an in- ference of
intentional discrimination in a new enact- ment. And when, as here, a State adopts
legislatively a new redistricting plan after a prior plan is held unlaw- ful, the burden of proof
rests on the plaintiff in any chal- lenge to the new plan.

These principles also suggest a further principle: A court should afford particular weight to a
state legislature’s reliance on a court-ordered remedy. When a court has found in a
reasoned decision that an interim plan redresses all likely violations of law, and when the state
legislature permanently adopts that plan to replace its original enactment, the normal
presumption of good faith accorded to legislative enactments is height- ened by the State’s
acceptance of the judicial plan. Applying a strong presumption of good faith in this context
would not direct an answer to the intent inquiry as a matter of law, but plaintiffs should bear
a heavy burden in establishing that a state legislature’s adoption of a court-ordered plan was
intentionally discriminatory.

B. The district court erred in its analysis of inten- tional vote dilution. Instead of asking
whether plaintiffs had proven that the 2013 Legislature adopted the 2013 plans with the purpose of
harming minority voters, the court asked whether the State had shown that it re- moved the
“taint of discriminatory intent” that in the court’s view had “carr[ied] over” from the 2011 plans.
C.J.S. App. 38a, 46a. But the lawfulness of the 2013 plans turns on the motivations of
the 2013 Legislature, and plaintiffs—not the State—bore the burden of proof in that analysis.

C. The circumstances here confirm the soundness of applying a strong presumption of good faith.

The 2013 Legislature’s plans were identical, or nearly so, to the court-ordered interim plans. In
adopting those interim plans after extensive evidentiary proceedings, the dis- trict court
expressly considered under Perry v. Perez, 565 U.S. 388 (2012) (per curiam), and provisionally re-
jected, claims of intentional discrimination involving the same districts now at issue. And the
court made numer- ous other ameliorative changes, which gave the Legis- lature good reason to
believe that the interim plans would suffice to remedy any prior deficiencies.

The district court’s orders and plaintiffs’ jurisdictional- stage filings in this Court do not
point to evidence that would rebut the strong presumption of good faith. The court perceived that
Texas was motivated to pursue a leg- islative solution as a “strategy” to end the pending liti-
gation. But such efforts at voluntary compliance pre- sumptively further—not frustrate—Congress’s
goal of ameliorating unlawful discrimination. And the court identified no evidence showing
that Texas acted with an intent to discriminate rather than an intent to adopt le- gally compliant
plans.

III. The district court also erred in finding Congres- sional District 35 to be an unconstitutional
racial gerry- mander. The “predominant” consideration in setting the boundaries of CD35 in
2013 was not race, but rather whether they matched the boundaries provisionally deemed lawful
in 2012. And the State had “good rea- sons” to believe that the Voting Rights Act required it to
draw CD35 in 2011 and maintain it in 2013, including that the district court had found in
2012 that CD35 aided in complying with the State’s obligations under

the VRA to draw seven Latino opportunity districts in South and West Texas.

ARGUMENT

I. THIS COURT MAY EXERCISE JURISDICTION OVER THESE APPEALS

A party may appeal directly to this Court “from an order granting or denying * * * an
interlocutory or permanent injunction” in a civil action required to be adjudicated by a
three-judge district court. 28 U.S.C. 1253. Under 28 U.S.C. 2284(a), a three-judge district
court is required for actions “challenging the constitu- tionality of the apportionment of
congressional districts or the apportionment of any statewide legislative body.” Ordinarily, when a
district court has not entered an or- der granting or denying an injunction, this Court lacks
jurisdiction to enter a direct appeal. The Court has made clear in the analogous
context of 28 U.S.C. 1292(a)(1), however, that even an order not styled as the grant or denial
of an injunction is appealable if it (1) has the “practical effect” of granting or denying an
injunc- tion; (2) “might have a ‘serious, perhaps irreparable, consequence’ ”; and (3) “can
be ‘effectually challenged’ only by immediate appeal.” Carson v. American Brands, Inc.,
450 U.S. 79, 84 (1981); see Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S.
271, 287-288 (1988). In the circumstances presented here, the district court’s August 15 and 24
orders meet those standards.

A. This case presents an unusual combination of extraordinary delays in the judicial proceedings followed

by the equally extraordinary expedition of those pro- ceedings on the eve of preparations for the

upcoming election cycle. After Texas enacted the 2013 congres- sional and State House plans, plaintiffs promptly

amended their complaints to challenge them. But the trial on the 2013 plans was not held until
July 2017, and the district court did not issue its decisions on those plans until
mid-August 2017, even though Texas had previously informed the district court that its
deadlines to begin preparations for the 2018 election cycle re- quired that its plans be in
place no later than October 1, 2017. See D. Ct. Doc. 1388, at 1-2 (May 1, 2017).⁸ By
the time the district court finally ruled, the 2013 plans (or the 2012 court-ordered plans on
which they were based) had been used for three straight election cycles (2012, 2014, and 2016).

The district court’s August 15 and August 24 orders held that the 2013 plans were unlawful and made
clear that those plans would not be used for the upcoming 2018 elections. The court’s
orders found that the 2013 congressional and State House plans contained various “statutory and
constitutional violations” and stated that those violations “must be remedied by either the Texas
Legislature or this Court.” C.J.S. App. 118a; H.J.S. App. 84a-85a (similar). The
court then directed the Texas Attorney General to advise, within only “three business
days,” whether “the Legislature intends to

_________

⁸ Texas advised the district court that pursuant to Texas Election Code § 14.001 (West 2017),
election officials were required to mail voter election certificates on or after November 15, 2017,
but before December 6, 2017. See D. Ct. Doc. 1388, at 2. The State indicated that October 1,
2017 was “the last possible date when individual voter-registration-templates must be
provided by the Secretary of State to each of the 254 county election officials in the
State of Texas.” Id. at 1-2. The State’s primary elections are scheduled for March 6, 2018.

take up redistricting in an effort to cure these viola- tions.” C.J.S. App. 118a; H.J.S.
App. 86a.⁹ The court further directed that “[i]f the Legislature does not in- tend to take up
redistricting,” the court would hold “hearing[s] to consider remedial plans” on September 5 and
6, 2017. Ibid. The court ordered that, in that event, “the parties must take immediate steps to
consult with their experts and mapdrawers and prepare statewide
* * * plans that remedy the violations.” Ibid.

In these circumstances, the district court’s orders were tantamount to injunctive relief.
The court’s signif- icant delay, coupled with the impending deadlines and the remarkably
compressed time frame to consider a possible legislative enactment, placed Texas in a diffi-
cult position: because the district court found the exist- ing plans “unlawful” and ordered
that they “must be remedied,” Texas could be quite confident that the dis- trict court would not
permit it to use those plans for the 2018 elections, even though the court had approved
their use in prior years. Yet that consequence was not expressly stated in the form of an
injunction. Had Texas been required to wait until the district court en- tered an express
injunction, it would likely have come too late to afford Texas a reasonable opportunity under

________

9 That three-day response period was far shorter than is typically afforded to a state
legislature, which this Court has stated should be given a “reasonable opportunity” to contemplate
a possible leg- islative remedy before being compelled to proceed to remedial liti- gation. Lawyer
v. Department of Justice, 521 U.S. 567, 576 (1997) (quoting Wise v. Lipscomb, 437 U.S. 535, 540
(1978) (principal opin- ion)).

the circumstances for appellate review before deadlines associated with the 2018 election cycle.¹⁰

B. None of this Court’s decisions compels a different result. In Gunn v. University Committee
to End the War in Viet Nam, 399 U.S. 383 (1970), this Court held that it lacked jurisdiction
under Section 1253 over a three-judge district-court order that declared a state law
unconstitutional, but declined to enter an immedi- ate injunction. That case, however, did not
involve a redistricting suit under 28 U.S.C. 2284(a) or the timing considerations present here, and
it cannot be said that the district court’s liability determination in that case could only be
effectually challenged by immediate ap- peal. Similarly, in Whitcomb v. Chavis, 403 U.S.
124 (1971), this Court held in a footnote that it lacked juris- diction under Section 1253 to
entertain an appeal from an interlocutory liability determination in a redistrict- ing case. Id.
at 138 n.19; see Whitcomb v. Davis, 403 U.S. 914 (1971) (order dismissing appeal). But that
case, too, did not involve the timing pressures present here, and the Court did not expressly
consider whether the district court’s liability ruling may have had the practical effect of
an injunction.

_________

¹⁰ We do not suggest that such preliminary deadlines in the elec- tion cycle should stand as an
obstacle to relief on the merits if the Court were to find a violation of the VRA or the
Constitution and if the considerations identified in Purcell v. Gonzalez, 549 U.S. 1
(2006) (per curiam), for withholding relief close to an election are not yet present. As explained
in the text, however, the delays and resulting compressed time frame are relevant for purposes of
con- struing 28 U.S.C. 1253 and 2284(a), which provide for direct review of injunctions against
statewide reapportionment plans to ensure prompt resolution of challenges to such plans and to
accord respect for acts of a state legislature.

II. THE DISTRICT COURT ERRED IN ITS ANALYSIS OF INTENTIONAL VOTE DILUTION IN THE
2013 CON- GRESSIONAL AND STATE HOUSE PLANS

On the merits, the Court should correct the legal er- rors underlying the district court’s
rulings that the Texas Legislature engaged in intentional vote dilution in 2013 when it
adopted Congressional District 27, and State House Districts 32, 34, 54, 55, 103, 104, and 105,
without change from the court’s own 2012 interim plans. The court rested its rulings on
determinations that the State’s original 2011 plans were tainted with “discrimi- natory intent”
and that the Legislature failed to “cleanse” that intent in enacting its new 2013
plans. C.J.S. App. 44a. But in deciding whether the 2013 plans were intentionally discriminatory, the
court should have evaluated the intent of the 2013 Legislature, and should have applied the
familiar principles for discerning the intent of a legislative body, which include a presumption of
good faith. That presumption should be particularly strong here, because the Legislature
enacted the in- terim plans adopted by the district court. Viewed under the correct legal
framework, the evidence invoked by the district court, and discussed by plaintiffs in
their motions to dismiss or affirm in this Court, would not be sufficient to overcome that strong
presumption of good faith and to establish discriminatory intent.

A. Plaintiffs’ Claims Of Intentional Vote Dilution Require Them To Show That The 2013 Legislature
Acted With A Discriminatory Racial Purpose

Plaintiffs claim that the 2013 plans (Plans C235 and H358) intentionally diluted the voting
strength of mi- nority voters in several districts in violation of Section 2 of the VRA and
the Fourteenth Amendment. The

principles for adjudicating those claims are well established.

1. A legislative enactment may be invalidated on grounds of intentional discrimination only
if the legisla- ture “acted with a discriminatory purpose.” Reno v. Bossier Parish Sch.
Bd., 520 U.S. 471, 481 (1997). “ ‘Discriminatory purpose’ * * * implies more than intent as
volition or intent as awareness of consequences. It implies that the decisionmaker selected
or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite
of,’ its adverse effects upon an identifiable group.” Personnel Adm’r v. Feeney, 442 U.S.
256, 279 (1979) (citation omitted). Thus, “even if a neu- tral law has a disproportionately
adverse effect upon a racial minority, it is unconstitutional under the Equal Protection Clause
only if that impact can be traced to a discriminatory purpose.” Id. at 272.

The inquiry into a legislature’s motivation is an “in- herently complex endeavor.” Hunt v.
Cromartie, 526 U.S. 541, 546 (1999). “Outright admissions of impermis- sible racial motivation are infrequent.”
Id. at 553. More commonly, “[d]etermining whether invidious discrimi- natory purpose was a
motivating factor demands a sen- sitive inquiry into such circumstantial and direct evi-
dence of intent as may be available.” Village of Arling- ton Heights v. Metropolitan Hous. Dev.
Corp., 429 U.S. 252, 266 (1977); see Rogers v. Lodge, 458 U.S. 613, 618 (1982) (recognizing that
“an invidious discriminatory purpose” may often be “inferred from the totality of the relevant
facts”) (quoting Washington v. Davis, 426 U.S. 229, 242 (1976)). The determination of a
legislature’s motivation, though guided by legal principles, is ulti- mately an issue of
fact. See Hunt, 526 U.S. at 549 (“The legislature’s motivation is itself a factual question.”).

In Arlington Heights, this Court set forth several considerations in analyzing “whether
invidious discrim- inatory purpose was a motivating factor” in a govern- ment body’s
decisionmaking. 429 U.S. at 266; see Boss- ier Parish, 520 U.S. at 481 (noting that
Arlington Heights “serve[s] as the framework for examining dis- criminatory purpose in cases
brought under the Equal Protection Clause”). Under this framework, courts con- sider (1) whether
the “impact of the official action * * * bears more heavily on one race than another”; (2) “the
historical background of the decision”; (3) “[t]he specific sequence of events leading up to the
challenged deci- sion”; (4) any “[d]epartures from the normal procedural sequence”; and (5)
“[t]he legislative or administrative history, especially . . . [any] contemporary statements by
members of the decisionmaking body.” Bossier Par- ish, 520 U.S. at 489 (quoting Arlington
Heights, 429 U.S. at 266-268) (brackets in original). This Court has repeatedly applied this framework to
assess legislative intent in the context of challenges to state redistricting plans. See Hunt, 526 U.S. at 546-549;
Shaw v. Reno, 509 U.S. 630, 644 (1993) (Shaw I); Rogers, 458 U.S. at 618.

In performing this inquiry, the burden rests on the “plaintiff ” to “establish that the State * *
* acted with a discriminatory purpose.” Bossier Parish, 520 U.S. at 481; cf. Schaffer v. Weast,
546 U.S. 49, 56 (2005) (recog- nizing that the burden of proof generally rests on the party
alleging a violation of federal law); Voinovich v. Quilter, 507 U.S. 146, 155-156 (1993) (“Section
2, how- ever, places at least the initial burden of proving an ap- portionment’s invalidity
squarely on the plaintiff ’s shoulders.”). If, and only if, a plaintiff proves
intentional discrimination does the burden shift to the de- fendant to establish any
available defense, such as by

showing that it would have taken the same action for valid reasons even absent impermissible
discrimination. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285-286
(1977).

2. The Court has recognized several additional prin- ciples relevant to adjudicating claims of
unlawful racial intent in the context of state legislative redistricting.

First, this Court has emphasized in the redistricting context that courts must accord a
“presumption of good faith [to] legislative enactments.” Hunt, 526 U.S. at 553 (quoting Miller v.
Johnson, 515 U.S. 900, 916 (1995)). The Court has explained that “[f ]ederal-court review of
districting legislation represents a serious intrusion on the most vital of local functions,”
Miller, 515 U.S. at 915, because legislative apportionment is “primarily the duty and
responsibility of the State,” Shelby County v. Holder, 133 S. Ct. 2612, 2623 (2013) (quoting Perry
v. Perez, 565 U.S. 388, 392 (2012)) (per curiam); see Cooper v. Harris, 137 S. Ct. 1455, 1463 (2017)

(“The Constitution entrusts States with the job of designing congressional districts.”). For that reason,

“courts must ‘exercise ex- traordinary caution in adjudicating claims that a State has drawn district lines

on the basis of race.’ ” Bethune- Hill v. Virginia State Bd. of Elections, 137 S. Ct. 788, 797 (2017) (quoting Miller,

515 U.S. at 916).Second, this Court has explained that, although in- quiry into the effects of a challenged action
“may provide an important starting point” for analysis, “official action will not be held
unconstitutional solely because it results in a racially disproportionate impact.” Arlington
Heights, 429 U.S. at 264-266 (citing Davis, 426 U.S. at 242); see also, e.g., Coleman v. Court of
Appeals, 566 U.S. 30, 42 (2012) (plurality opinion). Thus, a State’s

decision to “choose a redistricting plan that has a dilu- tive impact does not, without more,
suffice to establish that the jurisdiction acted with a discriminatory pur- pose.” Bossier
Parish, 520 U.S. at 487-488; cf. Miller, 515 U.S. at 914 (stating in racial-gerrymandering con-
text that “impact alone” is usually “not determinative, and the Court must look to other evidence
of race-based decisionmaking”).

Third, this Court has recognized that a finding of in- tentional discrimination in a prior
legislative enactment is ordinarily insufficient, standing alone, to support an inference of
intentional discrimination in a later enact- ment. “[P]ast discrimination cannot, in the manner
of original sin, condemn governmental action that is not it- self unlawful.” City of Mobile v.
Bolden, 446 U.S. 55, 74 (1980) (plurality opinion). Of course, “[t]he historical background”
to a challenged enactment is a relevant consideration, Arlington Heights, 429 U.S. at 267,
in- cluding evidence pertaining to events that are “reason- ably contemporaneous with the
challenged decision,” McCleskey v. Kemp, 481 U.S. 279, 298 n.20 (1987). But even when a prior
finding of intentional discrimination was recent, “[t]he ultimate question” under Arlington Heights
must be “whether a discriminatory intent has been proved in [the] given case”—that is, for the
partic- ular challenged enactment. City of Mobile, 446 U.S. at 74 (plurality opinion).
Fourth, this Court’s decisions indicate that, when a State enacts a new redistricting plan in response

to a judicial order holding a prior plan unconstitutional, the plaintiff retains the burden of proof in any

challenge to the State’s new plan. This Court has long recognized that when a federal court has

determined that a new apportionment is required, a State “should be given the

opportunity to make its own redistricting decisions so long as that is practically possible.”
Lawyer v. Depart- ment of Justice, 521 U.S. 567, 576 (1997); see Wise v. Lipscomb,
437 U.S. 535, 540 (1978) (principal opinion). And even when practical necessities dictate
the implementation of a court-drawn map in the first instance, States nonetheless remain
“free to replace court-mandated remedial plans by enacting redistricting plans of
their own.” League of United Latin Am. Citi- zens v. Perry, 548 U.S. 399, 416 (2006) (LULAC)
(opinion of Kennedy, J.); see Wise, 437 U.S. at 540 (principal opinion); Burns v. Richardson, 384 U.S.
73, 85 (1966). When a State avails itself of that opportunity, “[t]he new legislative plan
* * * will then be the governing law unless it, too, is challenged and found to violate the
Constitution.” Wise, 437 U.S. at 540 (principal opinion); accord id. at 548 (opinion of Powell,
J., joined by three other Justices concurring in part and concurring in the judgment); id. at 550
(Marshall, J., dissenting, joined by two other Justices) (agreeing with the relevant portion of
the principal opinion); see also Mississippi State Chapter, Operation PUSH, Inc. v. Mabus,
932 F.2d 400, 408-409 (5th Cir. 1991) (holding that plaintiff had failed to “establish[] that the
Mississippi Legislature” had “a racially discriminatory purpose” in enacting its legisla- tive
remedy for a Section 2 violation).

3. The foregoing principles, taken together, suggest a further principle. In considering the

“historical back- ground” and “specific sequence of events” leading to a revised legislative action,

Arlington Heights, 429 U.S. at 267, a court should afford particular weight to a state legislature’s

reliance on a court’s determination that a particular remedy is both necessary and likely sufficient

to cure a legal violation. When, as here, a court has found

that an interim plan is sufficient to redress all likely vio- lations of law, and when the
state legislature perma- nently adopts that plan to replace its original enactment, the normal
presumption of good faith accorded to legis- lative enactments is heightened by the State’s
ac- ceptance of the judicial plan. Courts should operate from a strong presumption that the state
legislature’s adop- tion of the judicially approved remedy was due to good- faith compliance
efforts rather than sinister motives.

Applying a strong presumption of good faith in this context would not direct an answer to the
intent inquiry as a matter of law. Even when a state legislature per- manently adopts a remedy
that a court has provisionally declared to be lawful, a plaintiff may attempt to prove that the
legislature adopted that remedy not in good faith, but rather for the purpose of harming
racial mi- norities and perpetuating unlawful discrimination. Cf. Hayden v. Paterson, 594 F.3d
150, 167 (2d Cir. 2010) (contemplating the “possibility that a legislative body might seek to
insulate from challenge a law known to have been originally enacted with a discriminatory pur-
pose”). The legislature’s adoption of a court-ordered plan cannot immunize a State from all
possible liability, including for intentional wrongdoing when it exists. Cf., e.g., LULAC, 548
U.S. at 416 (opinion of Kennedy, J.) (“Judicial respect for legislative plans * * * cannot jus-
tify legislative reliance on improper criteria for district- ing determinations.”); Weinberger
v. Wiesenfeld, 420 U.S. 636, 648 n.16 (1975) (recognizing that courts “need
not * * * accept at face value assertions of legislative purposes” if “examination of the
legislative scheme and its history demonstrates that the asserted purpose could not have been
a goal of the legislation”). Plaintiffs should bear a heavy burden, however, in establishing

that a state legislature’s adoption of a court-ordered plan was intentionally discriminatory.

B. The District Court Incorrectly Presumed Discrimina- tory Intent And Shifted The
Burden Of Proof To The State

Rather than applying the settled framework for in- tentional vote-dilution claims, the district
court under- took a fundamentally different analysis. The court did not ask whether plaintiffs had
proven that the Legisla- ture, in enacting the 2013 plans, acted with the purpose of harming
minority voters. Instead, the court asked whether the State had shown that it had removed the
“taint of discriminatory intent” associated with certain districts in its 2011 plans. C.J.S. App.
38a.¹¹ The court’s analysis reflects several legal errors.

1. First, the district court incorrectly assumed that discriminatory intent associated with
old legislation persists into new litigation unless that prior intent is confronted and
somehow affirmatively extirpated. The court faulted the Legislature for not undertaking a “de-
liberative process to ensure that the 2013 plans cured any taint from the 2011 plans.” C.J.S.
App. 40a. The court concluded that, in light of that failure, “the ra- cially
discriminatory intent * * * that it previously found in the 2011 plans carr[ied]
over into the 2013 plans where those district lines remain unchanged.” Id.

____________

¹¹ The district court briefly recited the Arlington Heights frame- work in the background of its
opinion, see C.J.S. App. 27a, but its analysis did not follow that framework. The sole arguable
applica- tion of Arlington Heights appeared in a footnote, in which the district court observed
that the “history of discrimination” in Texas “support[ed]” the court’s findings under its taint
analysis. Id. at 38a-39a n.27.

at 46a; see id. at 117a (same); H.J.S. App. 6a (incorporating same analysis).

That presumption of persistent discriminatory intent is inconsistent with the analysis
required by this Court’s decisions. See pp. 26-30, supra. It also makes little sense. Whether
intentional discrimination existed in enacting the 2013 redistricting plans is a question
about the motives of the 2013 Legislature. Although under Arlington Heights as applied in
the redistricting context, a history of prior discrimination by a state or local legislative
body can be relevant, the central inquiry is whether the legislature that enacted the
partic- ular law at issue did so for an impermissible purpose.¹² Legislative intent is not an
artifact that “carr[ies] over” from one law to the next; it must be decided anew with each
successive enactment. See, e.g., City of Mobile, 446 U.S. at 74 (plurality opinion)
(inquiring “whether a

___________

¹² In its jurisdictional statement, Texas appears to contend (C.J.S. 25-28) that the district
court impermissibly relied on factual findings about the 2011 Legislature’s intent because claims
concerning the 2011 plans were moot. Regardless of whether the claims concerning the 2011 plans
were moot, the district court was not foreclosed, un- der the Arlington Heights analysis in
this redistricting context, from considering the “historical background of ” and “sequence of
events leading up to” enactment of the 2013 redistricting plans, including whether the 2011
Legislature acted with discriminatory intent. But the pertinent question is whether the 2013
plans were unlawful, and those plans are entitled to a strong presumption of validity because the
Texas Legislature enacted the court’s own in- terim plans with little or no change. As explained
below, evidence concerning the 2011 plans alone is not sufficient to overcome that presumption and
establish impermissible intent on the part of the 2013 Legislature, and neither the district court
nor plaintiffs in their motions to dismiss or affirm have identified other evidence that does so.
See pp. 40-44, infra.

discriminatory intent has been proved” as to the partic- ular enactment at issue, because
“past discrimination cannot * * * condemn governmental action that is not itself unlawful”); cf.
Palmer v. Thompson, 403 U.S. 217, 225 (1971) (contemplating that a law invalidated

because of improper motive might “be valid” if the legislature “repassed it for different reasons”).
In support of its belief that the discriminatory intent from 2011 “carr[ied] over” into 2013, the
district court invoked this Court’s decision in Hunter v. Underwood, 471 U.S. 222 (1985). See
C.J.S. App. 35a (“With regard to those areas in Plan C185 and Plan H283 where the Court found
that [the] district lines were drawn with impermissible motive * * * , Hunter
indicates that those portions of the plans remain unlawful.”). But Hunter did not involve
a subsequent legislative enact- ment at all. Rather, the question was whether a 1901 provision of
the Alabama Constitution, which provided for the disenfranchisement of persons “convicted of,
among other offenses, ‘any crime . . . involving moral turpitude,’ ” was invalid because it
had been adopted with the purpose of disenfranchising black voters. 471
U.S. at 223. In defending the constitutionality of that provision, Alabama urged that the passage
of time, coupled with intervening judicial rulings narrowing the predicate crimes giving
rise to disenfranchisement, had vitiated any intentional discrimination.

This Court rejected that proposition, explaining that the prior judicial invalidation of “[s]ome of
the more bla- tantly discriminatory selections” of crimes (including “miscegenation”) did not
cure the intentional discrimi- nation motivating other then-surviving provisions. Hunter,
471 U.S. at 233. But Hunter specifically con- templated that a different analysis would apply if
the

challenged provisions had been reenacted at a later time, and reserved the question whether
the challenged provision “would be valid if enacted today without any impermissible motivation.”
Ibid.; see City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 465 n.17 (1985) (Marshall, J.,
concurring in the judgment in part and dissenting in part) (describing Hunter as “h[olding]
that extant laws originally motivated by a discrimina- tory purpose continue to violate the Equal
Protection Clause, even if they would be permissible were they reenacted without a
discriminatory motive”); Cotton v. Fordice, 157 F.3d 388, 391 (5th Cir. 1998) (noting that Hunter
“left open the possibility that by amendment, a facially neutral provision * * * might overcome
its odi- ous origin”).

Consistent with that understanding of Hunter, sev- eral courts of appeals have recognized that
when a State reenacts a particular voting provision that was intentionally discriminatory when first
enacted, the ultimate focus in any subsequent litigation must be the intent of the reenacting
legislature, not the original one. See Hayden, 594 F.3d at 166-167 (addressing felon-
disenfranchisement law); Johnson v. Governor, 405 F.3d 1214, 1223-1224 (11th Cir.) (en banc)
(same), cert. denied, 546 U.S. 1015 (2005); Cotton, 157 F.3d at 391-392
& n.7 (same); Chen v. City of Houston, 206 F.3d 502, 520-521 (5th Cir. 2000) (addressing
racial-gerrymandering claim), cert. denied, 532 U.S. 1046 (2001). Those courts also have rejected the proposition
that prior in- tent “remains legally operative” unless and until some affirmative contrary
showing is made. Johnson, 405 F.3d at 1223; see Hayden, 594 F.3d at 166-167 (quoting and
citing Johnson with approval); accord Cotton, 157 F.3d at 392 (reaffirming that plaintiff was
required to

show that the “current version” of the law was “adopted out of a desire to discriminate”) (emphasis
added).¹³

_________

¹³ The district court declared that the “most relevant case” sup- porting its analysis was Chen
v. City of Houston, supra, but that decision is fully consistent with the above-stated
principles. C.J.S. App. 35a; cf. id. at 35a-39a. In Chen, the plaintiffs alleged that the City’s
1997 districting plan was a racial gerrymander insofar as it “substantially maintained the borders
of previous plans” from 1991, 1993, and 1995 in which race had allegedly predominated. 206 F.3d at
513. The Fifth Circuit explained that, although “evidence of in- tent garnered from [those] prior
plans” was relevant, “the state of mind involved in the prior plans [was] not of itself what is
precisely and directly the ultimate issue before the [c]ourt in this case.” Id. at 521. Rather,
the court recognized that the “state of mind of the reenacting body” controls the analysis, and
observed that the “in- tervening reenactment with meaningful alterations may render the current law
valid” even if the prior law was unconstitutional. Ibid. The court also applied a “presumption in
favor of the Council’s good faith,” id. at 520, and ultimately found that race had not predomi-
nated either in 1997 or in the prior years at issue.

The district court also invoked Kirksey v. Board of Supervisors, 554 F.2d 139 (5th Cir.) (en banc),
cert. denied, 434 U.S. 968 (1977), which reasoned that the “benign nature” of a new redistricting
plan “cannot insulate the redistricting government entity from the exist- ing taint” of a prior
“intentional and purposeful discriminatory de- nial of access.” Id. at 146-147; see C.J.S. App.
33a n.34, 45a. But Kirksey dates from the pre-City of Mobile era in which the Fifth Circuit
had concluded that a constitutional vote-dilution claim could be proven by either discriminatory
purpose or discriminatory ef- fects. Cf. Jones v. City of Lubbock, 727 F.2d 364, 369, 377-378
(5th Cir. 1984) (describing history). And to the extent “th[e] [Kirksey] court determined that a
[constitutional] voting dilution case did not necessarily require intent where a political
system demonstrably continued the effects of historical discrimination,” the Fifth Circuit later
rejected that approach, recognizing that a constitutional vote- dilution claim must “satisfy the
purpose standard generally applica- ble in equal protection cases.” Id. at 377.

2. In imposing a legal obligation on the Legislature to “ensure that the 2013 plans cured any
taint from the 2011 plans,” C.J.S. App. 40a, the district court also ef- fectively shifted the
burden of proof to Texas. As ex- plained above, the burden rests on the “plaintiff [s]” to
“establish that the State * * * acted with a discrim- inatory purpose.” Bossier Parish, 520
U.S. at 481. Although the court did not expressly state that it was shifting the burden of
proof, its conclusions that “[t]he discriminatory taint was not removed by the Legisla-
ture’s enactment of the Court’s interim plans,” C.J.S. App. 46a (emphasis added), and that “the
Legislature did not engage in a deliberative process to ensure that the 2013 plans cured any taint
from the 2011 plans,” id. at 40a (emphasis added), rest on the evident assumption that it was the
State’s obligation to disprove discrimina- tory intent in 2013 rather than plaintiffs’ obligation
to prove it.¹⁴ In shifting that burden, the district court overrode the strong
“presumption of good faith” that the State’s enactments should have enjoyed in these cir-
cumstances. Miller, 515 U.S. at 916; see p. 27, supra.

The district court suggested that, absent a burden on Texas to show it has “removed” its prior bad intent,

the 2013 plans would be “insulate[d]” from challenge and plaintiffs would have “no remedy” for any “discrimina

- tion or unconstitutional effects” in those plans. C.J.S. App. 44a-45a & n.45. That is incorrect: plaintiffs here could
have attempted to prove their case in the same

___________

¹⁴ The district court’s burden-shifting was invited by some plain- tiffs, who argued that the
“State has the burden [in the litigation] to prove that its chosen remedy cures all of the defects
found by the Court” in the 2011 plan. D. Ct. Doc. 1525, at 49 (July 31, 2017) (MALC
post-trial brief ); see id. at 21, 40-42.

way as all other similarly situated plaintiffs in redis- tricting cases—namely, by
establishing that the 2013 Legislature enacted the 2013 plans for impermissible racial
purposes. And to do that, because the Legisla- ture adopted court-ordered remedial plans,
plaintiffs should be required to adduce particularly persuasive evidence in order to surmount
the presumption that the Legislature acted lawfully. But the possibility that a legislature
might act with nefarious motives in enacting a court-approved plan cannot justify relieving
plaintiffs of their burden to show that those motives exist.¹⁵

C. This Court Should Reject The Basis For The District Court’s Findings Of Intentional
Discrimination

It was only by relying on the flawed premises described above that the district court
reached its conclusion that the 2013 plans were the unlawful product of intentional
discrimination. Although the determination of legislative motive is a “factual question,” Hunt,
526 U.S. at 549, this Court retains “full power to correct a court’s errors of law,” including any
“legal mistake[s]” underlying factual findings. Cooper, 137 S. Ct. at 1464-1465, 1474; see LULAC,
548 U.S. at 427 (“Where ‘the ultimate finding of dilution’ is based on ‘a misreading of the
governing law’ * * * there is reversible error.”)

_________

¹⁵ The district court’s “insulat[ion]” concern also reflects its con- flation of the concepts of
discriminatory intent and unlawful vote- dilutive effect. Although success on plaintiffs’
intentional vote- dilution claims would require proof that the 2013 Legislature acted for a
discriminatory purpose, plaintiffs’ Section 2 “results” claims require no such showing. See pp.
4-5, supra. Thus, as Texas has acknowledged, the fact that a re-enacting legislature does not act
with unlawful intent does not foreclose the possibility that “imper- missible discriminatory effect
may be carried over * * * from one version of a law to another.” C.J.S. 17.

(quoting Johnson v. De Grandy, 512 U.S. 997, 1022 (1994)). This Court should correct those
legal errors.

1. Application of a strong presumption of good faith is appropriate in this case

The circumstances of this case confirm the soundness of applying a strong presumption that
the Legisla- ture did not act with an impermissible racial purpose in adopting the 2013
redistricting plans.

First, the 2013 Legislature enacted plans that were either identical (for the congressional
plan) or nearly identical (for the State House plan) to the interim plans that the district court
ordered to be used for the 2012 elections. A legislature’s adoption, entirely or substan- tially
without amendment, of plans that have received judicial approval indicates the legislature’s
reliance on the district court’s factual and legal determinations that those plans are likely
lawful.

Second, in approving the 2012 interim plans, the dis- trict court expressly considered each of
plaintiffs’ chal- lenges under this Court’s Perry decision and concluded that they either were
“insubstantial” or had no “likeli- hood of success.” Perry, 565 U.S. at 394-395. The three- judge
district court’s approval of the districts that were unchanged from the 2011 plan to the 2012
interim plan was based on extensive evidentiary proceedings, includ- ing a ten-day trial in 2011; a
three-day hearing in 2011 regarding the first set of interim maps; a two-day hear- ing in 2012
concerning the revised set of interim maps on remand from Perry; and the court’s review of post-
trial briefing from the nine-day preclearance trial in the D.C. district court. C.J.S. App. 380a.

The district court’s evaluation of plaintiffs’ claims under Perry, and its determination that the

2012 interim plans were law-

ful under that standard, gave the Legislature good rea- son to believe that the court’s 2012
interim plans were a lawful basis for the 2013 plans.

As to the congressional plan, the district court found that CD27 likely did not violate Section 2
of the VRA because the court had restored CD23 as a Latino opportunity district. C.J.S.
App. 421a. With respect to CD35, the court found that race had not predominated in its creation
and that the district would not fail strict scrutiny in any event. Id. at 409a-415a. The court
like- wise stated that in preserving the unaltered districts in the State House plan, it was
“following the Supreme Court’s direction to leave undisturbed any district that is free from
legal defect.” H.J.S. App. 303a (citing Perry, 565 U.S. at 393-394). The court thus adopted
the 2012 interim plans only after considering, albeit prelim- inarily, the merits of all pending
VRA and constitutional challenges.

Third, the district court’s 2012 interim plans made numerous ameliorative changes to other
districts, which supported the Legislature’s conclusion that the interim plans had likely cured
any defects in the 2011 plans. The interim congressional plan made significant
changes to nine congressional districts, which included restoring CD23 as a Latino opportunity
district. C.J.S. App. 417a-421a. The court concluded that the restoration of CD23
“substantially addresse[d]” any Section 2 violation involving Latino voters in South and
West Texas, including those residing in Nueces County (CD27). Id. at 421a. After that
change, there were at least eleven congressional districts in the 2012 interim plan in which
minority voters had the opportunity to elect their candidates of choice, as opposed to only
ten such districts in the 2011 plan. Id. at 297a, 399a.

Similarly, in the interim State House plan, the dis- trict court made “substantial[]” changes
to 21 State House districts. H.J.S. App. 314a. The number of mi- nority opportunity districts
in the State House plan was thereby increased from 45 or 46 in the 2011 map to at least 50 in the
2013 map. See 11-cv-1303 Docket entry No. 79-2, at 8 (D.D.C. Oct. 25, 2011) (comparing numbers
in 2011 map to those in benchmark pre-2011 map); H.J.S. App. 308a-309a (noting that 2012

interim plan “offset” any “retrogression” in the 2011 plan).

Fourth, the court-ordered 2012 plans were created as compromise maps acceptable to both the State
and to several plaintiffs. C.J.S. App. 6a, 368a; see D. Ct. Doc. 660 (Feb. 16, 2012) ( joint
advisory filed by defendants and by the Texas Latino Redistricting Task Force plaintiffs
proposing interim congressional plan); D. Ct. Doc. 668 (Feb. 21, 2012) (same for interim State
House plan).¹⁶ That some (although not all) plaintiffs approved of the interim plans further
supports the reasonable- ness of the Legislature’s belief that those plans were lawful.

2. Neither the district court nor plaintiffs’ filings to date in this Court have
identified sufficient evidence to rebut the strong presumption of good faith
The district court’s orders and the plaintiffs’ jurisdictional-stage filings in this
Court do not point to evidence that would be sufficient to rebut the strong

_________

¹⁶ Although the Texas Latino Redistricting Task Force plaintiffs had alleged that the 2011 State
House and congressional plans “di- lut[ed] Latino voting strength statewide,” D. Ct. Doc. 68, ¶ 21
(July 25, 2011), those plaintiffs brought no challenges to the 2013 congres- sional plan, and as to
the 2013 State House plan those plaintiffs chal- lenged only a single district (HD90, which was
modified in 2013 from the district court’s interim plan). C.J.S. App. 12a-13a.

presumption of good faith that applies to the 2013 Leg- islature’s re-adoption of the unchanged
districts from the district court’s interim plan. The district court re- lied on its assessment
that the “Legislature did not adopt the [2012 interim] plans with the intent to adopt legally
compliant plans free from discriminatory taint,” C.J.S. App. 40a, but rather as a “litigation strategy de

- signed to insulate the 2011 or 2013 plans from further challenge,” id. at 41a. Plaintiffs endorse that

rationale in their filings in this Court. See 17-586 Mot. to Dismiss 12, 21 n.9; 17-626 MALC Mot. to Dismiss 29.

But those assertions appear not to rest on evidence, but rather on a misunderstanding of the law.
To the extent Texas adopted the 2013 plans with a view to resolving existing litigation
against the 2011 plans, it is unclear why the district court regarded that strategy as inherently
pernicious. An intent to end liti- gation, without more, is not an intent to discriminate. Indeed,
the best way to end litigation is to adopt a re- districting plan that complies with the
Voting Rights Act and the Constitution. And if a federal court has pro- visionally determined
that a particular action is unlawful and imposes an interim remedy, and if a legislature per-
manently adopts that remedy in lieu of continuing to con- test the lawfulness of the original
action, the State’s ac- ceptance of the judicial plan presumptively furthers— not
frustrates—Congress’s goal in enacting the VRA of ameliorating unlawful discrimination.
Moreover, even when a State replaces a judicial rem- edy without fully adopting it, this Court’s
decisions re- quire that federal courts treat such plans with defer- ence. See pp. 28-29,
supra. It follows that a State that enacts a court-approved plan in order to obviate a need for
litigation concerning prospective compliance should

receive, at a minimum, the same deference. Were the law otherwise, every state legislative
remedy under- taken against the backdrop of redistricting litigation would be presumptively
improper, in contravention of this Court’s “presumption of good faith” for state legis- lative
enactments, Miller, 515 U.S. at 915, and its en- couragement of state legislative remedies,
Wise, 437 U.S. at 540 (principal opinion). Cf. Ricci v. DeStefano, 557 U.S. 557, 581 (2009) (recognizing
value of “voluntary compliance” in Title VII context).

In any event, the district court did not identify the evidence that it believed supported its
assertion that the 2013 Legislature acted with an intent to discrimi- nate rather than an “intent
to adopt legally compliant plans.” C.J.S. App. 40a. Rather, the court’s statement appears to rest
on its mistaken belief that the Legisla- ture was under an affirmative obligation to undertake a
“deliberative process to ensure that the 2013 plan cured any taint from the 2011 plans,” ibid., and
an ensuing in- ference that the Legislature’s failure to discharge that obligation was proof of ill
motive. But to the extent that the 2013 Legislature relied on the district court’s legal and
factual judgments rather than second-guessing them, such reliance is more naturally understood
as a sign of good faith. Indeed, the Legislature’s refusal to adopt significant changes is
consistent with a legislative intent to avoid creating (even inadvertently) new viola- tions of the
VRA.

The district court also cited evidence that the Legis- lature’s counsel, Jeff Archer, advised
legislators that the district court’s 2012 findings were preliminary and therefore not “full
determinations” on the merits of every claim. C.J.S. App. 43a; see 17-586 Mot. to Dismiss 21
(relying on same evidence). But the district court’s

orders on the 2012 interim plans were, at a minimum, highly relevant in assessing Texas’s legal
obligations and the likely merits of plaintiffs’ claims. The fact that the Legislature knew that
the court-ordered interim maps were not based on a final adjudication of plaintiffs’ claims
concerning the 2011 plans, and yet adopted those maps anyway, can quite reasonably be understood as
reflect- ing the Legislature’s judgment that the court-ordered maps provided the best
evidence available as to what re- medial plans would comply with federal law.¹⁷ But in any event,
the non-final nature of the district court’s deter- minations underlying its interim plans is
not, without more, affirmative evidence of discriminatory intent.

The district court also observed that the 2013 Legis- lature had “steadfast[ly] refus[ed]” to
consider the pos- sibility of drawing new “coalition” districts, which the district court had
earlier found “could be required” by the VRA. C.J.S. Pet. App. 40a; cf. p. 10 n.5, supra. But the
Legislature may have believed that the necessary factual predicate, including proof of
cohesive voting among Hispanic and African-American voters, did not exist to require drawing
new coalition districts. This Court had stated in Perry that if the district court, in
adopting its 2011 interim plans, had set out to create a

___________

¹⁷ Texas’s post-trial briefing before the district court cited sev- eral pieces of record evidence
consistent with this understanding. See, e.g., JX-10.4 at 26 (Representative Drew Darby, Chairman,
House Select Committee on Redistricting) (“[T]he interim maps represent the District Court’s best
judgment as to * * * fully legal and constitutional redistricting plans.”); JX-13.4 at 151
(Repre- sentative Travis Clardy, Member, House Select Committee on Re- districting) (“[I]nterim
means interim, I understand that, but it’s a good, fair map drawn by three hard-working impartial
federal judges who are very well acquainted with the law. Don’t you think it’s reasonable that *
* * we use those maps?”).

minority coalition district, “it had no basis for doing so.” 565 U.S. at 399. The district court
also did not include any new coalition districts in its 2012 interim plans. And the district court
ultimately rejected plaintiffs’ claims that the Legislature should have created additional co-
alition districts in 2013. See H.J.S. App. 7a, 9a-12a, 14a, 16a, 20a-22a, 24a-26a, 85a; C.J.S.
App. 49a-51a, 53a-85a.

Finally, the district court noted that the 2013 Legis- lature “pushed the redistricting bills
through quickly in a special session,” C.J.S. App. 40a, which began on May 27, 2013, and ended on
June 25, 2013. But the Governor convened a special session only because the Legislature had ended
its regular session in May 2013 without any new redistricting plans to replace the 2011
plans, for which the D.C. district court had denied preclearance. And because the Legislature sits
in regular session for only 140 days every two years, see Tex. Const. art. III,
§§ 5(a), 24(b), a special session was necessary if the Leg- islature was to adopt new redistricting
plans before the 2014 elections. The “quick[ness]” of the special session may reflect only that
“no [special] session shall be of longer duration than thirty days.” Id. § 40.

III. THE DISTRICT COURT ERRED IN CONCLUDING THAT CONGRESSIONAL DISTRICT
35 IS AN UNCONSTITUTIONAL RACIAL GERRYMANDER

A. This Court applies a two-step analysis in deter- mining whether a State has violated the Equal
Protec- tion Clause through racial gerrymandering. At the first step, plaintiffs must prove that
“race was the predomi- nant factor motivating the legislature’s decision to place a significant
number of voters within or without” a par- ticular district. Alabama Legislative Black Caucus v.
Alabama, 135 S. Ct. 1257, 1267 (2015) (citation omitted). At the second step, the burden
shifts to the State to

“prove that its race-based sorting of voters serves a ‘compelling interest’ and is
‘narrowly tailored’ to that end.” Cooper, 137 S. Ct. at 1464 (quoting Bethune-Hill, 137 S. Ct.
at 800). When a State invokes compliance with the Voting Rights Act as the “compelling
interest” justifying its race-based apportionment, it must show that it had “ ‘good reasons’ ” for
concluding that its ac- tions were required by the VRA. Ibid. (quoting Ala- bama, 135 S. Ct. at
1274).

B. The district court erred in finding a racial gerry- mander in CD35. As an initial matter, the
2013 Legisla- ture adopted CD35 in its present form in 2013 because that district had received
judicial endorsement in the court-ordered interim congressional plan. Thus, the
“predominant” consideration in establishing the bounda- ries of CD35 in 2013 was that they matched
the district provisionally deemed lawful by the three-judge court.

In any event, the State had “good reasons” to believe that the VRA required it to draw CD35
in 2011 and maintain it in 2013. Cooper, 137 S. Ct. at 1464. The dis- trict court’s own
decision in 2012 concluded that Texas had good reasons for drawing CD35 as it did. Although the
district court provisionally concluded in 2012 that race did not predominate in drawing the
district, it also found that “[p]laintiffs [had not] demonstrated a sub- stantial likelihood that
CD35 would fail a strict scrutiny analysis [even] if strict scrutiny applies.” C.J.S. App. 415a.

The court noted that Texas had defended CD35 in the preclearance proceedings as a “minority oppor-
tunity district,” id. at 411a, and it observed that CD35 had been designed to have a “Hispanic
majority” with “ ‘above 50 percent of [Hispanic citizen voting age pop- ulation],’ ” ibid.
(citation omitted). Indeed, the court counted CD35 among the seven “Latino opportunity

districts” that it perceived as necessary to satisfy plain- tiffs’ Section 2 “results” claims
in South and West Texas. Id. at 409a. Although the district court’s ap- proval of
CD35 in 2012 was provisional, that endorse- ment provided at least “breathing room” for
Texas to conclude, in 2013, that CD35 addressed a VRA need and that maintaining it would not
violate the Equal Protec- tion Clause. Cooper, 137 S. Ct. at 1464 (citation omitted). In addition
to the district court’s endorsement of CD35 in 2012, there were other “good reasons” for
Texas to believe that Section 2 of the VRA required drawing CD35 as a Hispanic-majority district.
It is uncontested that Section 2 required no fewer than seven Latino op- portunity districts in
South and West Texas. C.J.S. App. 112a & n.85, 126a-127a, 176a. And the State had reason to
believe that CD35 would satisfy Gingles; map- drawers and members of the Legislature in 2011 were
aware of substantial Hispanic populations in Austin and San Antonio, and were furnished with
analyses of ra- cially polarized voting (RPV) showing information about polarization
statewide and in each district, includ- ing District 35. See C.J.S. Supp. App. 67a-69a,
201a, 366a, 467a-469a, 481a-482a. Indeed, one group of plain- tiffs proposed and supported the
creation of CD35 as “an appropriate § 2” Latino opportunity district during the 2011
redistricting process. C.J.S. App. 174a; see C.J.S. Supp. App. 158a (describing CD35 as a “[n]ew
Hispanic VRA district”); C.J.S. Supp. App. 152a, 316a- 317a, 319a-320a.

C. The district court’s ruling that CD35 failed “strict scrutiny review” because it was “not
narrowly tailored to the State’s professed interest in avoiding § 2 liability,”
C.J.S. App. 113a, 177a, rests on misunderstandings of

Section 2’s requirements, the trial record, and the strict- scrutiny standards articulated by this
Court.

As explained (pp. 4-5, supra), to make a prima facie showing of vote dilution under Section 2, a
plaintiff must prove, inter alia, that the majority group would vote “sufficiently as a
bloc to enable it * * * usually to defeat the minority’s preferred candidate.” Thornburgh
v. Gingles, 478 U.S. 30, 51 (1986) (citation omitted). The district court concluded that that
precondition could not be met for CD35 because “[e]vidence from county-level elections” in Travis
County “shows substantial Anglo crossover voting,” such that “the Anglo majority does
not usually defeat the minority-preferred candidate.” C.J.S. App. 175a. But only a small share

(21%) of the total population of Travis County is included in CD35. Id. at 181a. The district court did

not address whether voting patterns were racially polarized within the par- ticular portion of Travis

County included in CD35, nor did it address whether voting patterns were racially po- larized across

CD35 as a whole (i.e., including both ar- eas inside and outside Travis County). And the district court cited

no precedent in support of its apparent as- sumption that a State necessarily lacks good reasons to draw a

Section 2 district any time that a district includes (or, as here, partially overlaps with) a
community in which racial polarization is not apparent. To the con- trary, this Court has
recently reaffirmed that “the basic unit of analysis for racial gerrymandering claims * * * is the
district,” and has stated that “[c]oncentrating on particular portions [of the district] in
isolation may ob- scure the significance of relevant districtwide evi- dence.” Bethune-Hill,
137 S. Ct. at 799-800.

Applying a “holistic analysis,” Bethune-Hill, 137 S. Ct. at 800, the record confirms that it would be inappropriate

to deem CD35 an improper Section 2 district solely be- cause of a purported lack of racially
polarized voting in Travis County. See D. Ct. Doc. 681-3, at 7 (Feb. 28, 2012). The
total population of CD35 is 698,488. Ibid. The total Hispanic population of CD35 is 438,819
persons, more than two-thirds of whom reside outside Travis County. Ibid. The total
Anglo population of CD35 is 175,726 persons, nearly three-quarters of whom reside outside Travis
County. Ibid. Within CD35, the Anglo population from Travis County is only 45,272 persons.
Ibid. Thus, even assuming a showing that Anglos in the covered portion of Travis County did not
engage in ra- cially polarized voting, that would fail to establish that Anglos districtwide would
not vote so as “usually to de- feat the minority’s preferred candidate.” Gingles, 478
U.S. at 51. And it is uncontroverted that racially polar- ized voting existed throughout the
counties making up the majority of CD35. See C.J.S. App. 21a (stating that the existence of
racially polarized voting outside Travis County was “essentially undisputed” and “supported by all
the expert testimony in the case”).

In any event, even if the absence of racially polarized voting in Travis County meant that CD35 was
not re- quired to be drawn as a Section 2 district, the district court erred in finding that CD35
failed strict scrutiny for that reason. This Court’s precedents afford a State “ ‘breathing
room’ to adopt reasonable compliance measures that may prove, in perfect hindsight, not to
have been needed.” Cooper, 137 S. Ct. at 1464 (citation omitted). Here, because the State had, at
a minimum, “good reason to think that all the ‘Gingles precondi- tions’ [were] met,” “so
too it ha[d] good reason to believe that § 2 require[d] drawing a majority-minority dis-
trict.” Id. at 1470.

CONCLUSION

For the foregoing reasons, the Court should reject the bases for the district court’s
findings of intentional discrimination as to eight unchanged districts (CD27, HD32, HD34,
HD54, HD55, HD103, HD104, and HD105), and it should reverse the finding of a racial ger

- rymander as to the remaining unchanged district (CD35).

Respectfully submitted.

NOEL J. FRANCISCO
Solicitor General

JOHN M. GORE
Acting Assistant Attorney General

JEFFREY B. WALL

EDWIN S. KNEEDLER
Deputy Solicitors General

GREGORY B. FRIEL
Deputy Assistant Attorney General

JEFFREY E. SANDBERG
Assistant to the Solicitor General

BONNIE I. ROBIN-VERGEER
Attorney

FEBRUARY 2018

Updated April 18, 2023

Abbott v. Perez Brief As Appellee Supporting Appellants

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT

SUMMARY OF ARGUMENT

ARGUMENT

I. THIS COURT MAY EXERCISE JURISDICTION OVER THESE APPEALS

II. THE DISTRICT COURT ERRED IN ITS ANALYSIS OF INTENTIONAL VOTE DILUTION IN THE 2013 CON- GRESSIONAL AND STATE HOUSE PLANS

A. Plaintiffs’ Claims Of Intentional Vote Dilution Require Them To Show That The 2013 Legislature Acted With A Discriminatory Racial Purpose

B. The District Court Incorrectly Presumed Discrimina- tory Intent And Shifted The Burden Of Proof To The State

C. This Court Should Reject The Basis For The District Court’s Findings Of Intentional Discrimination

1. Application of a strong presumption of good faith is appropriate in this case

III. THE DISTRICT COURT ERRED IN CONCLUDING THAT CONGRESSIONAL DISTRICT 35 IS AN UNCONSTITUTIONAL RACIAL GERRYMANDER

CONCLUSION

II. THE DISTRICT COURT ERRED IN ITS ANALYSIS OF INTENTIONAL VOTE DILUTION IN THE
2013 CON- GRESSIONAL AND STATE HOUSE PLANS

A. Plaintiffs’ Claims Of Intentional Vote Dilution Require Them To Show That The 2013 Legislature
Acted With A Discriminatory Racial Purpose

B. The District Court Incorrectly Presumed Discrimina- tory Intent And Shifted The
Burden Of Proof To The State

C. This Court Should Reject The Basis For The District Court’s Findings Of Intentional
Discrimination

III. THE DISTRICT COURT ERRED IN CONCLUDING THAT CONGRESSIONAL DISTRICT
35 IS AN UNCONSTITUTIONAL RACIAL GERRYMANDER