Veasey et al v. Abbott et al

Filing 1022

ORDER ON GOVERNMENT'S MOTION FOR VOLUNTARY DISMISSAL OF DISCRIMINATORY PURPOSE CLAIM AND ASSERTION OF MOOTNESS granting #1001 Motion.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
MARC VEASEY, et al,
Plaintiffs,
VS.
GREG ABBOTT, et al,
Defendants.

April 03, 2017
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 2:13-CV-193
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ORDER ON GOVERNMENT’S MOTION FOR
VOLUNTARY DISMISSAL OF DISCRIMINATORY PURPOSE CLAIM
AND ASSERTION OF MOOTNESS
Before the Court is “United States’s Motion for Voluntary Dismissal of
Discriminatory Purpose Claim Without Prejudice” (D.E. 1001). Defendants have not
asserted any objection to the relief sought in the motion and the “Private Plaintiffs take
no position” on it. D.E. 1010, p. 5. However, the Government’s stated reasoning for its
dismissal, at least in part, is that (1) the discriminatory purpose claim is moot due to
pending Texas legislation and (2) the Fifth Circuit directed this Court to forbear a
decision on discriminatory purpose until after the end of the current Texas legislative
session.
On February 28, 2017, the Court ordered briefing on the issues of mootness and
forbearance, and the briefs have been filed. D.E. 1010, 1012, 1015, 1018, 1019. For the
reasons set out below, the Court HOLDS that the Fifth Circuit did not direct this Court to
withhold a decision on the discriminatory purpose claim and that the claim is not, and

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will not be, moot as a result of pending or future legislation. Nonetheless, the Court
GRANTS the motion to dismiss the Government’s claim as unopposed.
DISCUSSION
A. The Fifth Circuit’s Directive Did Not Require Forbearance.
The Fifth Circuit majority’s remand of the discriminatory intent finding came with
clear instructions issued in the conclusion of its initial analysis: (1) this Court was to
receive no new evidence; (2) this Court could, but was not required to, entertain
additional oral arguments; (3) this Court’s first priority was to fashion interim relief for
the discriminatory effects claim, to be imposed prior to the November 2016 election;
(4) it was unnecessary for this Court to make its new finding on discriminatory intent
prior to the November 2016 election; and (5) this Court was not to impose any relief
based on any decision regarding discriminatory intent until after the November 2016
election. Veasey v. Abbott, 830 F.3d 216, 242-43 (5th Cir. 2016). These instructions
were repeated at the conclusion of the majority opinion. Id. at 272.
In the wrap-up discussion of the discriminatory intent claim, the majority opinion
expressly acknowledged that this Court was permitted to make its new finding prior to
the November 2016 election so long as no remedy on that basis would be imposed until
after the election. Id. While the opinion also states that this Court’s reexamination of the
discriminatory purpose claim should be done, “bearing in mind the effect any interim
legislative action taken with respect to SB 14 may have,” that statement was made in
connection with interim relief and should not be read out of context.

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Additional

legislative action will certainly inform the type of relief warranted with respect to any
violation Plaintiffs demonstrate.
B. The Question of Discriminatory Intent Will Not Be Mooted by New
Legislation.
The Supreme Court has placed the difficult burden of demonstrating mootness
squarely upon the party who asserts the defense.
[T]he standard we have announced for determining whether a
case has been mooted by the defendant's voluntary conduct is
stringent: “A case might become moot if subsequent events
made it absolutely clear that the allegedly wrongful behavior
could not reasonably be expected to recur.” The “heavy
burden of persua[ding]” the court that the challenged conduct
cannot reasonably be expected to start up again lies with the
party asserting mootness.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)
(quoting United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203
(1968)).
It is well-settled that new legislation does not ipso facto eliminate the
discriminatory intent behind older legislation and moot a dispute regarding the violation
of law. Hunter v. Underwood, 471 U.S. 222, 232-33 (1985) (events over 80 years to
change the terms of the law do not eliminate its original discriminatory intent); Miss.
State Chapter, Operation Push, Inc. v. Mabus, 932 F.2d 400, 408-09 (5th Cir. 1991)
(each bill must be evaluated on its own terms for discriminatory purpose); N. C. State
Conference of NAACP v. McCrory, 831 F.3d 204, 240 (4th Cir. 2016) (reasonable
impediment amendment does not eliminate all lingering effects of law that was
discriminatory when passed); Perez v. Texas, 970 F. Supp. 2d 593, 603 (W.D. Tex. 2013)
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(claims of intentional discrimination in connection with legislation are not mooted by
subsequent legislation so long as requested relief is available for purposeful
discrimination); Perez v. Abbott, No. SA-11-CV-360, 2017 WL 962947, at *3 (W.D. Tex.
Mar. 10, 2017) (finding intentional discrimination claims not moot so long as relief was
available to remedy the associated harm, even if remedy for discriminatory effects claim
was mooted by later legislation).
The State’s authorities, cited for the opposite conclusion are distinguishable. In
Diffenderfer v. Central Baptist Church of Miami, Florida, Inc., 404 U.S. 412, 413-14
(1972), citizens and taxpayers sued to challenge the constitutionality of a statute that
allowed a church parking lot to be exempt from taxation even when it was used for
commercial purposes.

They sought a declaratory judgment that the statute was

unconstitutional and also sought future taxation of the commercial use of the property.
The action was mooted on appeal because the statute that fully exempted the property
was repealed and the parking lot was being taxed for its commercial use. All relief
requested had been achieved. Here, the remedies proposed by pending legislation are
neither final nor complete and nothing has been done to grant Plaintiffs the entirety of the
remedies they seek.
The substitution of an arguably less discriminatory ordinance was accomplished
during the pendency of Northeastern Florida Chapter of the Associated General
Contractors of America v. City of Jacksonville, Florida, 508 U.S. 656, 662 (1993), a case
upon which Defendants rely. The Supreme Court clearly ruled against the argument that
the dispute was mooted by the change:
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The gravamen of petitioner's complaint is that its members
are disadvantaged in their efforts to obtain city contracts. The
new ordinance may disadvantage them to a lesser degree than
the old one, but insofar as it accords preferential treatment to
black- and female-owned contractors—and, in particular,
insofar as its “Sheltered Market Plan” is a “set aside” by
another name—it disadvantages them in the same
fundamental way.
We hold that the case is not moot . . . .
Id. The opinion does not support Defendants’ arguments when Plaintiffs contend that a
discriminatory intent pervaded SB 14 and the proposed amendment offers only partial
relief, compared to the status quo ante.
The Seventh Circuit held, “[C]omplete repeal of a challenged law renders a case
moot, unless there is evidence creating a reasonable expectation that the City will reenact
the ordinance or one substantially similar.” Fed'n of Advert. Indus. Representatives, Inc.
v. City of Chicago, 326 F.3d 924, 930 (7th Cir. 2003). That rule fit the circumstances of
that case because the only relief sought was an injunction against enforcing the law. If
the law is repealed, there is nothing left to enforce. Here, however, Plaintiffs are arguing
for additional relief to redress the lingering injury of an alleged discriminatory purpose in
passing the statute.

And the imposition of the reasonable impediment affidavit

requirement has not been demonstrated to eliminate all of the adverse effects of SB 14.
The existence of additional injuries, some of which carry additional remedies prevents
application of this mootness holding.
The Fifth Circuit’s holding in McCorvey v. Hill, 385 F.3d 846, 849 (5th Cir.
2004), is distinguishable on the same basis: a change in the law during the pendency of
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the case offered full relief. And the same result obtains in Kremens v. Bartley, 431 U.S.
119 (1977) (seeking only to enjoin future enforcement of a provision of law repealed
during the pendency of the case); Massachusetts v. Oakes, 491 U.S. 576, 583 (1989)
(finding that amended statute eliminated the only claim: that the overbroad original
statute would chill speech in the future); and Princeton University v. Schmid, 455 U.S.
100, 103 (1982) (challenge to future enforcement of school rules without a reasonable
regulatory scheme was mooted when school substantially changed the applicable rules
and imposed new regulations).
Defendants get no support from Lewis v. Continental Bank Corp., 494 U.S. 472,
481 (1990), either. In Lewis, the change in the law did not eliminate all potential
disputes, but it did eliminate the plaintiff’s complaint because it no longer suffered any
injury—for which it sought only prospective relief. So while the change in the law did
not moot the dispute as to all potential claimants, it did eliminate the particular plaintiff’s
standing to complain of the law as it no longer prejudiced it. The case here involves not
only more comprehensive injuries, but must address the interests of both voters and
candidates. SB 5 (which has not been enacted) and its reasonable impediment affidavit
cannot be presumed to offer complete relief.
Here, Plaintiffs allege that they were intentionally discriminated against when the
Texas legislature passed SB 14. In that event, they suffered injuries with respect to
voting in elections that have already closed and can never be reopened. While the only
relief they can obtain is prospective, the injuries are not eliminated as a result of a single
provision that ameliorates the harshest effect of the law. And the Voting Rights Act
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remedies, including imposing the requirement of preclearance, are meant to address
injuries more harsh and lasting than those addressed by SB 5.
CONCLUSION
State legislatures—as well as the Courts—are capable of fashioning remedies to
counteract the discriminatory consequences of laws going forward. The Fifth Circuit
instructed this Court to begin with an interim remedy for the discriminatory effect
violation prior to the November 2016 election, acknowledging that the Texas legislature
was not in session and likely would not weigh in on the issue within the time left for
doing so. Only after that election, was this Court to consider additional remedies for both
the discriminatory effect violation and any discriminatory intent violation that this Court
may find upon its required reexamination of the evidence.
Having heard re-argument, this Court intends to issue its new opinion on whether
SB 14 was passed with a discriminatory intent in violation of the Voting Rights Act at its
earliest convenience and in due course. The Court will, however, await the end of the
current Texas legislative session to address remedies. In that regard, this matter is set for
a status conference on June 7, 2017 at 9:00 a.m. at which time the parties, having
conferred on the matter, will advise the Court of:
 Whether an evidentiary hearing on remedies is required;
 The amount of court time necessary for any such hearing;
 The preferred deadlines for exchanging exhibit and witness lists, if any;
and
 The preferred deadlines for filing briefs on the issue of remedies, not to
exceed 20 pages, without leave of Court.
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The Court GRANTS the United States’ motion for voluntary dismissal of its
discriminatory purpose claim without prejudice (D.E. 1001).
ORDERED this 3rd day of April, 2017.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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