Perez et al v. Perry et al

Filing 1104

ORDER GRANTING IN PART AND DENYING IN PART 995 Motion to Dismiss. The motion to dismiss the 2011 plan claims as moot is DENIED and the motion to dismiss the political gerrymandering claims against the 2013 plan claims is GRANTED. Accordingly, all claims asserted by TDP and Morris are DISMISSED. The Court expresses no view on the ultimate merits or chances of success of the claims that remain for decision. Signed by Judge Orlando L. Garcia, Circuit Judge Jerry E. Smith, Judge Xavier Rodriguez. (aej) Modified on 6/17/2014 to include all Judges (aej).

In the United States District Court
for the
Western District of Texas
SHANNON PEREZ, ET AL.
v.
RICK PERRY, ET AL.

§
§
§
§
§

SA-11-CV-360

ORDER
On this date, the Court considered Defendants’ Motion to Dismiss (docket no. 995).
Defendants raise two arguments in their motion: (1) the claims relating to the 2011 plans are moot
and the Court should reconsider its prior rulings to the contrary; and (2) the political gerrymandering
claims relating to the 2013 plans should be dismissed as nonjusticiable and for failure to state a
claim. After careful consideration, the Court will deny the motion to dismiss the 2011 plan claims
as moot and grant the motion to dismiss the political gerrymandering claims for failure to state a
claim.
Background
In 2011, numerous Plaintiffs and Intervenors (“Plaintiffs”) filed suits asserting constitutional
and statutory challenges against the State’s 2011 enacted maps, Plan H283 (Texas House of
Representatives) and Plan C185 (United States House of Representatives). At the time, Texas was
subject to the preclearance requirements of Section 5 of the Voting Rights Act (“VRA”), and
preclearance litigation was pending in the United States District Court for the District of Columbia
(“the D.C. Court”). Because the preclearance proceedings were incomplete at the time new maps

1

were required for the 2012 elections, this Court adopted interim maps to be used for the 2012
elections. These maps were proposed compromise maps submitted by some of the parties.
The Court adopted the interim maps after reviewing them under the standard set forth by the
Supreme Court in Perry v. Perez, 132 S. Ct. 934 (2012). Under this standard, the Court determined
whether Plaintiffs presented “not insubstantial” claims under § 5 or demonstrated a substantial
likelihood of success on the § 2 and Fourteenth Amendment claims with regard to the enacted plans.
The Court emphasized that it made no determinations on the merits of any claims because it was
acting under severe time pressures that prevented the Court from fully examining the record. Docket
no. 690 at 3 (“[W]e emphasize the preliminary nature of this order and that, except for the fact that
PLAN H309 sets the districts for the 2012 elections, nothing in this opinion reflects this Court’s final
determination of any legal or factual matters in this case or the case pending in the D.C. Court.”);
Docket no. 691 at 1 (noting that “this interim map is a result of preliminary determinations” and “is
not a final ruling on the merits or any claims”). Some Plaintiffs complained that the compromise
maps did not fully redress their complaints, but no appeal was taken. The Court’s interim maps were
therefore used for the 2012 elections.
In August 2012, the D.C. Court issued a decision denying preclearance of the Legislature’s
2011 enacted plans. Texas v. United States, 887 F. Supp. 2d 133 (D.D.C. 2012). Texas appealed
the D.C. Court’s decision.
By the end of May 2013, the Legislature’s regular session ended with no redistricting action.
But the Governor called the Legislature back for the first called special session to consider
“legislation which ratifies and adopts the interim redistricting plans ordered by the federal district
court as the permanent plans for districts used to elect members of the Texas House of
2

Representatives, Texas Senate and United States House of Representatives.” The Legislature
reconvened and undertook this redistricting task.
By June 23, 2013, the Legislature had passed Senate Bill 3 (Plan H358) and Senate Bill 4
(Plan C235) to enrollment. See S.B. 3 and S.B. 4, 83rd Legislature, 1st Called Session. Senate Bill
4 “ratified and adopted” this Court’s interim congressional map, Plan C235, without change, and
repealed Senate Bill 4 from the 2011 first special session, which had adopted Plan C185. Senate Bill
3 adopted Plan H358 as the plan for the Texas House of Representatives and repealed House Bill
150 from the 2011 regular session, which had adopted Plan H283.1 Plan H358 is substantially
similar to the Court’s interim plan, but contains some changes, primarily to HD90. The plans were
sent to Governor Perry for approval on June 24, 2013.
On June 25, while the appeal of the D.C. Court’s decision was pending, the Supreme Court
decided Shelby County, Alabama v. Holder, 133 S. Ct. 2612 (2013), holding that §4(b), the formula
that determines which jurisdictions are subject to § 5 preclearance, is unconstitutional. On June 26,
Governor Perry signed Senate Bill 3 and Senate Bill 4 into law. On June 27, 2013, the Supreme
Court vacated the D.C. Court’s judgment denying preclearance of the 2011 plans and remanded the
case for further consideration in light of Shelby County and the suggestion of mootness of appellees
Wendy Davis, et al. See Texas v. United States, 133 S. Ct. 2885 (June 27, 2013).2

1

Tex. S.B. 3, art. III, § 3, 83d Leg., 1st C.S. (“Chapter 1271 (H.B. 150), Acts of the 82nd
Legislature, Regular Session,2011 (Article 195a-12, Vernon ’s Texas Civil Statutes), is repealed.”);
Tex. S.B. 4 § 3, 83d Leg., 1st C.S. (“Chapter 1 (Senate Bill No. 4), Acts of the 82nd Legislature, 1st
Called Session, 2011 (Article 197j, Vernon ’s Texas Civil Statutes), is repealed.”).
2

On remand, Texas moved to dismiss the case as moot, and the United States did not oppose
the motion. Some defendants in the D.C. case sought leave to amend to assert counterclaims for
relief under § 3(c) of the VRA. On December 3, 2013, the D.C. Court granted Texas’s motion to
dismiss proceedings in that court and denied the motions to amend to assert claims under § 3(c). That
3

On June 28, Defendants in this case filed a motion to dismiss for lack of subject matter
jurisdiction, arguing that the case had become moot and should be dismissed. See docket no. 768.
Specifically, Defendants argued that passage of the new plans in the 2013 special legislative session
repealed the 2011 plans, which are the subject of this lawsuit, and that the vacated 2011 plans can
never be used to conduct any election and therefore pose no threat of injury to Plaintiffs. Therefore,
Defendants asserted, because the 2011 plans pose no threat and “any order regarding the 2011 plans
can provide no effectual relief,” the case should be dismissed as moot.
This Court held a status conference on July 1, 2013. At the hearing, Plaintiffs expressed a
desire to amend their complaints to challenge the 2013 plans, and some Plaintiffs stated their intent
to amend their existing claims related to the 2011 plans to seek relief under § 3(c) of the VRA.
Section 3(c), known as the VRA’s “bail-in” provision, states, “If in any proceeding instituted by .
. . an aggrieved person under any statute to enforce the voting guarantees of the fourteenth or
fifteenth amendment in any State or political subdivision the court finds that violations of the
fourteenth or fifteenth amendment justifying equitable relief have occurred within the territory of
such State or political subdivision, the court, in addition to such relief as it may grant, shall retain
jurisdiction for such period as it may deem appropriate and during such period [may impose
preclearance requirements].” 42 U.S.C. § 1973a(c). After the status conference, the Court issued
an order summarily denying the motion to dismiss for lack of jurisdiction without prejudice (docket
no. 771) and issued an order directing Plaintiffs to file motions for leave to amend pleadings.
In accordance with the Court’s order, Plaintiffs filed their motions for leave to amend their
pleadings. Various Plaintiffs sought leave to amend to assert § 2 and Fourteenth and Fifteenth

case is now closed.
4

Amendment claims against Plans C235 and H358, as well as to seek equitable relief under § 3(c) of
the VRA. Some Plaintiffs maintained their § 2 and constitutional claims against the 2011 plans and
sought leave to amend to request equitable relief under § 3(c) of the VRA with regard to the 2011
plans. And some Plaintiffs sought leave to amend to assert political gerrymandering claims against
the 2013 plans. The State filed a response in opposition to the motions for leave to amend, along
with a motion to dismiss as moot all claims related to the 2011 plans. Docket no. 786.
On September 6, 2013, this Court issued an order on the pending motions to dismiss and to
amend. See docket no. 886. The Court permitted Plaintiffs to amend their claims with regard to the
2011 plans to assert requests for equitable relief under § 3(c). With regard to the 2013 plans, the
Court held that amendment or supplementation to add § 2 and constitutional claims (including relief
under § 3(c)) against the 2013 plans was appropriate. The Court also permitted certain Plaintiffs to
amend their complaints to file political gerrymandering claims directed at the 2013 plans. Finally,
the Court ordered that the 2013 enacted plans, C235 and H358, would be used for the 2014
elections.3
In considering the mootness issue, the Court applied the mootness standard for voluntary
cessation set forth by the Supreme Court in United States v. W.T. Grant Co., 345 U.S. 629 (1953);
City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283 (1982); Ne. Fla. Chapter of the Assoc. Gen.
Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662 & n.3 (1993), and Friends of the
Earth, Inc. v. Laidlaw Environmental. Services, 528 U.S. 167 (2000). In W.T. Grant, the Supreme
Court considered whether the voluntary resignation of a corporate director from certain boards

3

The 2013 enacted plans for the Texas and U.S. House became law on September 24, 2013.
See Tex. Const. Art. III § 39.
5

mooted the plaintiffs’ claims that the defendant corporations were violating the Clayton Act’s
prohibition against interlocking corporate directorates. The Supreme Court noted “that voluntary
cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine
the case, i.e., does not make the case moot,” and that “[a] controversy may remain to be settled in
such circumstances, e.g., a dispute over the legality of the challenged practices.” 345 U.S. at 632.
The fact that the defendant “is free to return to his old ways,” “together with a public interest in
having the legality of the practices settled, militates against a mootness conclusion.” Id. The Court
noted, however, that “[t]he case may nevertheless be moot if the defendant can demonstrate that
‘there is no reasonable expectation that the wrong will be repeated.’” Id. at 632-33. The Court
stated, “The burden is a heavy one.” Id. at 633.
In Aladdin’s Castle, the plaintiff sought an injunction against enforcement of a city
ordinance. The district court held that certain language in the ordinance was unconstitutionally
vague and upheld the ordinance’s age restriction. The court of appeals affirmed the former holding
and reversed the latter. During the appeal, the city eliminated the vague language and retained the
age restriction. The Supreme Court noted that “[a] question of mootness is raised by the revision
of the ordinance that became effective while the case was pending in the Court of Appeals.” 455
U.S. at 288. The Court continued, “When that court decided that the term ‘connections with criminal
elements’ was unconstitutionally vague, that language was no longer a part of the ordinance.
Arguably, if the court had been fully advised, it would have regarded the vagueness issue as moot.
It is clear to us, however, that it was under no duty to do so.” Id. The Court then stated, “It is well
settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court
of its power to determine the legality of the practice.” Id. at 289. The Court reasoned,
6

Such abandonment is an important factor bearing on the question whether a court
should exercise its power to enjoin the defendant from renewing the practice, but that
is a matter relating to the exercise rather than the existence of judicial power. In this
case the city’s repeal of the objectionable language would not preclude it from
reenacting precisely the same provision if the District Court's judgment were vacated.
The city followed that course with respect to the age restriction, which was first
reduced for Aladdin from 17 to 7 and then, in obvious response to the state court's
judgment, the exemption was eliminated. There is no certainty that a similar course
would not be pursued if its most recent amendment were effective to defeat federal
jurisdiction.
Id. (footnotes omitted). In a footnote, the Court stated,
“The test for mootness in cases such as this is a stringent one. Mere voluntary
cessation of allegedly illegal conduct does not moot a case; if it did, the courts would
be compelled to leave ‘[t]he defendant ... free to return to his old ways.’ United States
v. W. T. Grant Co., 345 U.S. 629, 632 [73 S.Ct. 894, 897, 97 L.Ed. 1303] (1953); see,
e.g., United States v. Trans-Missouri Freight Assn., 166 U.S. 290 [17 S.Ct. 540, 41
L.Ed. 1007] (1897). A case might become moot if subsequent events made it
absolutely clear that the allegedly wrongful behavior could not reasonably be
expected to recur.... Of course it is still open to appellees to show, on remand, that
the likelihood of further violations is sufficiently remote to make injunctive relief
unnecessary. [345 U.S.] at 633–636, [73 S.Ct., at 897–899]. This is a matter for the
trial judge. But this case is not technically moot, an appeal has been properly taken,
and we have no choice but to decide it.” United States v. Concentrated Phosphate
Export Assn., 393 U.S. 199, 203–204, 89 S.Ct. 361, 364, 21 L.Ed.2d 344.
Id. at 289 n.10. The Court also noted in another footnote that the city had announced an intention
to reenact precisely the same provision if the district court’s judgment were vacated. Id. at 289 n.11.
The Court therefore considered the merits of the vagueness holding, despite the repeal of the
language.
In Associated General Contractors, the Court again considered a challenge to a city
ordinance, and said, “the mootness question is controlled by City of Mesquite v. Aladdin’s Castle,
Inc., 455 U.S. 283 (1982), where we applied the ‘well settled’ rule that ‘a defendant’s voluntary
cessation of a challenged practice does not deprive a federal court of its power to determine the

7

legality of the practice.” 508 U.S. at 661-62. The Court noted that, although the challenged statutory
language at issue in Aladdin’s Castle had been eliminated while the case was pending, it held that
the case was not moot because the repeal would not preclude it from reenacting precisely the same
provision if the district court’s judgment were vacated. The dissent argued that the case was
controlled by Diffenderfer v. Central Baptist Church of Miami, Inc., 404 U.S. 412 (1972),4 but the
Court stated that the “short answer” to that assertion was that in Diffenderfer the statute was
“changed substantially, and . . . there was therefore no basis for concluding that the challenged
conduct was being repeated.” 508 U.S. at 662 n.3.
In Friends of the Earth, the Supreme Court considered the voluntary cessation of allegedly
illegal conduct by a private defendant, and, citing W.T. Grant and Aladdin’s Castle, stated that it is
“well settled that ‘a defendant’s voluntary cessation of a challenged practice does not deprive a
federal court of its power to determine the legality of the practice.’” 528 U.S. at 189.
Although two of the four cases upon which this Court relied involved city ordinances, the
Supreme Court did not differentiate between public and private defendants, nor did it indicate that
a different standard or burden of proof would apply to public entity defendants. Applying the

4

In Diffenderfer, the plaintiff brought an as-applied challenge to a state statute insofar as it
authorized a tax exemption for church property used as a commercial parking lot. The district court
affirmed the validity of the statute as applied, and the plaintiffs appealed to the Supreme Court.
While the appeal was pending, the Florida Legislature repealed the statute and enacted new
legislation that provided that church property was exempt from taxation only if the property was used
predominantly for religious purposes. The Court found that the requested relief – declaratory
judgment that the now-repealed statute was unconstitutional as applied to a church parking lot used
for commercial purposes and an injunction against its application to said lot – was “inappropriate
now that the statute has been repealed.” 404 U.S. at 414-15. Because the lot in question was no
longer fully exempt from taxation, the Court concluded that there was no longer a present, live
controversy. The Diffenderfer Court did not consider whether there was a possibility that the statute
would be re-enacted.
8

standard set forth in those cases, this Court held that Defendants had a heavy burden of persuading
the court that the challenged conduct could not reasonably be expected to recur. Docket no. 886 at
12. The Court then held that Defendants failed to meet their burden of demonstrating that the
conduct alleged to violate § 2 and the Constitution with regard to the 2011 plans could not
reasonably be expected to recur. The Court noted that the 2013 plans are heavily derived from the
2011 plans, given the deferential standard required by the application of Perry v. Perez, and that
most Plaintiffs contend that many of the alleged violations of the VRA and the Constitution in the
2011 plans persist in the 2013 plans, though some perhaps to a lesser degree. Therefore, some of
the conduct alleged to be wrongful in 2011 was repeated in exactly the same manner in 2013, and
the plan was not sufficiently altered so as to present a substantially different controversy; rather,
Plaintiffs allege the same fundamental harms are continuing and Plaintiffs are still suffering injury
from the 2011 plans in the 2013 plans. Further, the Court noted that Defendants had never conceded
the illegality of any of the conduct and had steadfastly maintained that the 2011 plans contained no
legal deficiencies. Nor was there any indication or assurance that the Texas Legislature would not
engage in the same conduct during any future legislative session. The Court found that a dispute
remained over the legality of the challenged practices (even those that were remedied in the 2013
plans), that there was no assurance that the conduct would not recur, and that Plaintiffs maintained
a personal stake in the controversy. Given these circumstances, the Court found that there exists
some cognizable danger of recurrent violation such that Plaintiffs’ claims for declaratory and
injunctive relief with regard to the 2011 plans are not moot.
The Court further held that Plaintiffs could amend their pleadings to assert claims under §
3(c) with regard to the 2011 plans and that the possibility of § 3(c) relief also precluded Plaintiffs’
9

2011 plan claims from being moot. See Knox v. Serv. Emps. Int’l Union, Local 1000, ___ U.S. ___,
___, 132 S. Ct. 2277, 2287 (2012) (“A case becomes moot only when it is impossible for a court to
grant ‘any effectual relief whatever’ to the prevailing ‘party.’”); Blackmoon v. Charles Mix County,
505 F. Supp. 2d 585, 592-93 (D.S.D. 2007) (holding that the plaintiffs’ claims against districts no
longer in place were not moot because of the possibility of relief under § 3(a)).
In the instant motion, Defendants again move to dismiss the claims relating to the 2011 plans
as moot and move to dismiss the political gerrymandering claims relating to the 2013 Plans.
A. Whether the 2011 plan claims are moot?
Defendants assert that the Court’s prior conclusion that the 2011 plan claims are not moot
is “inconsistent with binding Supreme Court and Fifth Circuit precedent, and the State Defendants
file this motion to dismiss respectfully urging the Court to reconsider that decision.” Motion at 2.
Although some parties urge the Court not to entertain the motion because the Court has already
decided this issue and no facts have changed, the Court will consider the motion because Defendants
are asserting new legal arguments and the mootness issue is an important one.
In their prior motion to dismiss, Defendants cited numerous decisions setting forth the
standard for Article III standing to support their mootness argument. However, this Court noted that
the standards for standing and mootness are not identical and applied the standard for mootness set
forth in the Supreme Court precedents as described supra.
In this motion, Defendants argue that finding that the 2011 plan claims are not moot (1) treats
the State Defendants as if they were private actors, (2) misconstrues the Supreme Court’s two narrow
exceptions to the “near categorical” rule that legislative repeal moots claims against the repealed
statute, and (3) “disregard[s] the Supreme Court’s settled view that States, not federal courts, bear
10

the primary responsibility for reapportionment to the point of suggesting that the Legislature’s
adoption of plans in 2013 amounts to an interference with the reapportionment process.” Docket no.
995 at 2.
Defendants’ primary assertion is that this Court’s prior order applied the wrong standard and
burden of proof. Relying on a number of decisions from the various Courts of Appeals, Defendants
contend that the “heavy burden” on defendants applied by the Supreme Court in voluntary cessation
cases does not apply to government defendants in statutory repeal and amendment cases. Rather,
Defendants assert that there is a “near categorical” rule that statutory repeal moots a case, and the
burden is upon Plaintiffs to present evidence to satisfy one of the Supreme Court’s two narrow
exceptions to that rule – (1) when there is evidence that the legislature will reenact “precisely the
same provision” once litigation ends (citing Aladdin’s Castle), and (2) when there is evidence that
replacement legislation has not “changed substantially” or “significantly revised” the challenged
provisions of the repealed provisions, thereby disadvantaging the plaintiffs in the same “fundamental
way” (citing Northeastern Florida).
As noted above, the Supreme Court has applied the voluntary cessation “heavy burden” in
cases involving both private and government actors. Nevertheless, Defendants urge us to follow the
approach of the Courts of Appeals, which have differentiated between private parties and
government officials.
In Federation of Advertising Industry Representatives, Inc. v. City of Chicago, 326 F.3d 924
(7th Cir. 2003), the Seventh Circuit considered whether the city’s repeal of a challenged ordinance
rendered the case moot. The court recognized that the voluntary cessation doctrine is “the
appropriate standard for cases between private parties,” but noted, “this is not the view we have
11

taken toward acts of voluntary cessation by government officials.” Id. at 929. The court stated that,
“[r]ather than presuming bad faith, we have repeatedly held that the complete 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.” Id. at 930. The court found its approach
consistent with Supreme Court precedent, noting that, “[i]n a string of cases, the Court has upheld
the general rule that repeal, expiration, or significant amendment to challenged legislation ends the
ongoing controversy and renders moot a plaintiff’s request for injunctive relief.” Id. The court
stated, “Only in cases where there is evidence that the repeal was not genuine has the Court refused
to hold the case moot.” Id.
The court noted that in Aladdin’s Castle, the city had announced its intention to reenact the
challenged provision if the case was dismissed and in Northeastern Florida, the City had already
replaced the repealed ordinance with one that was substantially similar. The court further concluded
that language in the Aladdin’s Castle majority opinion that “perhaps suggests that mere repeal of a
challenged statute does not moot a case” was “dicta and therefore not controlling” in light of “both
previous and subsequent cases” and Justice White’s concurrence. Id. at 930 n.5. The court therefore
held that Aladdin’s Castle and Northeastern Florida “represent only an exception to the general
rule” and that what separated them from Diffenderfer and similar cases was that “in the prior cases
there was ‘no basis for concluding that the challenged conduct was being repeated,’ whereas in
Northeastern Florida the City had already reenacted a similar statute.” Id. at 930 n.6.
Thus, the Seventh Circuit, “along with all the circuits to address this issue, have interpreted
Supreme Court precedent to support the rule that repeal of a contested ordinance moots a plaintiff’s
injunction request, absent evidence that the City plans to or already has reenacted the challenged law
12

or one substantially similar.” Id. The Seventh Circuit concluded that the issue was “whether there
is any evidence that the City of Chicago’s repeal was disingenuous; that is, evidence that the City
will reenact the challenged ordinance or one substantially similar.” Id. at 931.
In McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004), the Fifth Circuit stated, “Suits regarding
the constitutionality of statutes become moot once the statute is repealed,” but recognized that “an
exception to this mootness rule exists where there is evidence, or a legitimate reason to believe, that
the state will reenact the statute or one that is substantially similar.” Id. at 849 & n.3. Further, in
Sossaman v. Lone Star State of Texas, 560 F.3d 316, 325 (5th Cir. 2009), the court noted that “courts
are justified in treating a voluntary governmental cessation of possibly wrongful conduct with some
solicitude, mooting cases that might have been allowed to proceed had the defendant not been a
public entity – a practice that is reconcilable with Laidlaw.” Thus, “[a]lthough Laidlaw establishes
that a defendant has a heavy burden to prove that the challenged conduct will not recur once the suit
is dismissed as moot, government actors in their sovereign capacity and in the exercise of their
official duties are accorded a presumption of good faith because they are public servants, not selfinterested private parties. Without evidence to the contrary, we assume that formally announced
changes to official governmental policy are not mere litigation posturing.” Id. The court therefore
imposed a “lighter burden to make ‘absolutely clear’ that the [alleged wrongful conduct] cannot
‘reasonably be expected to recur.’” Id.
The Court concludes that its prior reasoning and ruling regarding mootness are consistent
with Supreme Court precedent. Further, to the extent that the Courts of Appeals have imposed a
lighter burden or a presumption of good faith, the Court concludes that application of such a lighter
burden or presumption of good faith does not alter the Court’s decision. Under any approach, the
13

ultimate question is essentially whether the Court finds that there is a reasonable possibility that the
challenged conduct will recur. See Erwin Chemerinsky, Federal Jurisdiction § 2.5, at 139 (3d ed.
1999) (“The difficulty is determining why in some situations a legislative repeal is deemed to make
a case moot, yet in other cases it does not . . . . The key appears to be that cases will not be
dismissed as moot if the Court believes that there is a likelihood of reenactment of a substantially
similar law if the lawsuit is dismissed.”). The evidence before the Court, discussed in its prior order
on mootness, led the Court to conclude that there is in fact such a likelihood, and the Court reaches
the same result today.
With regard to those elements of the 2011 plans that remained unchanged and remained
challenged in the interim plans, when the Legislature adopted the Court’s interim plans it engaged
in the same conduct or incorporated the identical portions of the 2011 plans alleged to be illegal into
the 2013 plans. In addition, the Task Force Plaintiffs complain that the Legislature engaged in
similar vote dilution conduct with regard to HD 90 in the 2013 session. Thus, there is evidence that
the Legislature has already engaged in both identical and substantially similar conduct, making this
case more like Aladdin’s Castle and Associated General Contractors. The fact that the State asserts
that it believed the interim maps to be free from legal defect when it enacted them in 2013 goes to
the merits of the controversy, not to whether a controversy remains to be decided. And, as noted,
the State has steadfastly maintained the legality of all of the challenged conduct and has not
announced any policy change that would preclude the Legislature from engaging in the same alleged
wrongful conduct. Evidence submitted by Plaintiffs and the United States indicates that the
Legislature adopted the 2013 plans at least in part in an attempt to end this particular litigation, not
because it conceded the any of its actions were wrongful or because it had abandoned any intent to
14

engage in the same conduct. Last, even though the 2011 plans would not be enjoined in toto given
that they have been repealed, the ongoing controversy concerning the legality of certain portions of
the plan and the presence of Plaintiffs’ requests for § 3(c) relief prevent the 2011 plan claims from
becoming moot. For these reasons, the Court again denies Defendants’ motion to dismiss the 2011
plan claims as moot.
B. Whether the 2013 plan political gerrymandering claims should be dismissed?
This Court previously permitted the Texas Democratic Party and Gilberto Hinojosa (“TDP”)
and John Morris to file amended complaints adding political gerrymandering claims against the 2013
plans. Docket no. 886.5 The TDP alleges that the 2013 plans kept intact much of the 2011 plans,
and thus are “equal partisan gerrymanders.” Docket no. 902 at 3. The TDP alleges that the maps
were designed with strict partisan purpose and include a number of congressional and house districts
that far exceed Republicans’ share of the State’s electorate. Id. The TDP asserts political
gerrymandering claims under the Equal Protection Clause of the Fourteenth Amendment, Article I,
Sections 2 and 4, and the First Amendment of the United States Constitution. Id. at 7-8.
In the first round of litigation challenging the 2011 plans, the Court dismissed the political
gerrymandering claims for failure to state a claim. Docket no. 285. Following the Supreme Court’s
decisions in Vieth v. Jubelirer, 541 U.S. 267 (2004) and LULAC v. Perry, 548 U.S. 399 (2006), the
Court concluded that political gerrymandering claims are justiciable, but require the plaintiffs to set
5

Defendants assert that “[t]he TDP is the only party asserting partisan-gerrymandering claims
against the 2013 redistricting plans.” Docket no. 995 at 32. However, John Morris is also asserting
partisan gerrymandering claims against the 2013 congressional plan. See docket no. 784-1.
Defendants have not moved for summary judgment on Morris’s claims, but the Court will construe
Defendants’ motion as encompassing Morris’s claims. Morris has filed a response in opposition to
the motion. Docket no. 1079. Morris seeks permission to file a brief concerning his First
Amendment political gerrymandering claim. That request is denied.
15

forth a clear, manageable, and politically neutral standard by which to measure the burden imposed
on their representational rights. Because plaintiffs failed to do so, the Court dismissed the claims
on the pleadings under Federal Rule of Civil Procedure 12(c). In the present motion, Defendants
again assert that the partisan gerrymandering claims against the 2013 plans are nonjusticiable, and
that TDP fails to state a claim upon which relief can be granted.
In Davis v. Bandemer, 478 U.S. 109 (1986), the Supreme Court held that political
gerrymandering claims are justiciable, but could not agree upon a standard to adjudicate them.
Eighteen years later, a workable standard still had not emerged, and a plurality of the Court in Vieth
v. Jubelirer, 541 U.S. 267 (2004), concluded that Davis should be overruled and political
gerrymandering claims be considered nonjusticiable. The plurality noted that in eighteen years, only
one case had provided relief under the standard set forth in Bandemer’s four-Justice plurality
opinion, and the plurality “would be at a loss to explain why the Bandemer line should have been
drawn just there, and should not have embraced several districting plans that were upheld despite
allegations of extreme partisan discrimination, bizarrely shaped districts, and disproportionate
results.” Id. at 279-80 (Scalia, J.). Because no judicially discernible and manageable standards for
adjudicating political gerrymandering claims had emerged, the plurality concluded that Bandemer
was wrongly decided and such claims should be held nonjusticiable.
Justice Kennedy concurred in the result, but would not “foreclose all possibility of judicial
relief if some limited and precise rationale were found to” decide political gerrymandering claims
in the future. Id. at 306 (Kennedy, J.).6 In LULAC v. Perry, the Court declined to revisit the
6

This Court previously followed the Ninth Circuit in concluding that Justice Kennedy’s
opinion is controlling. Docket no. 285 at 21 (citing Alperin v. Vatican Bank, 410 F.3d 532, 552 n.13
(9th Cir. 2005)); see also Radogno, 2011 WL 5868225, at *2 (noting that “political gerrymandering
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justiciability holding. 548 U.S. at 414. Justice Kennedy made clear that “a successful claim
attempting to identify unconstitutional acts of partisan gerrymandering must . . . show a burden, as
measured by a reliable standard, on the complainants’ representational rights.” LULAC, 548 U.S.
at 418 (Kennedy, J.). Thus, this Court previously required Plaintiffs to proffer a reliable (i.e., clear,
manageable, and politically neutral) standard for evaluating these claims.
Plaintiffs proffer no new standard in response to Defendants’ motion. Rather, they contend
that no standard is necessary in this case because Defendants have admitted to partisan
gerrymandering. And as before, they assert that courts will know an unconstitutional partisan
gerrymander whey they see one; the “totality of the circumstances/constellation of facts”
demonstrates an unconstitutional partisan gerrymander; lack of proportional representation, and an
extreme partisan gerrymander is evident on the face of the plan. Plaintiffs’ standards have all been
rejected. See Radogno v. Illinois State Bd. of Elections, No. 1:11-cv-04884, 2011 WL 5868225
(N.D. Ill. Nov. 22, 2011) (listing standards previously rejected by the Supreme Court).
Plaintiffs argue that the Supreme Court’s concern over an applicable standard “is not an issue
in this case because the state’s witnesses admit the motivation for the plan was to target Democrats
as a class and therefore undermine the power of their vote.” But a sole-intent test was rejected in
Vieth and LULAC v. Perry. The Vieth plurality considered Justice Powell’s standard from Bandemer
– that the ultimate inquiry ought to focus on whether district boundaries had been drawn solely for
partisan ends to the exclusion of all other neutral factors. Vieth, 541 U.S. at 290. The plurality noted

claims remain justiciable in principle but are currently ‘unsolvable’ based on the absence of any
workable standard for addressing them”). If the plurality is controlling, the claims would be
dismissed as nonjusticiable. Regardless of which approach is taken, the result is the same – a denial
of relief.
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the difficulty inherent in statewide political gerrymandering claims, and concluded that Justice
Powell’s standard was essentially a totality-of-the-circumstances analysis to determine whether a
particular gerrymander had gone too far or was not “fair.” Id. In LULAC v. Perry, in which the
plaintiffs asserted equal protection and First Amendment claims, Justice Kennedy noted that
partisan aims generally would not guide every line in a plan, and the plaintiffs must nevertheless
demonstrate a burden, as measured by a reliable standard, on the complainants’ representational
rights. 548 U.S. at 418 (Kennedy, J.).
With regard to Plaintiffs’ other standards, simply saying that a partisan gerrymander is an
illegal partisan gerrymander because it is so extreme is not a “clear, manageable, and politically
neutral standard” for measuring the burden on representation rights. It is merely a conclusion. And
as noted, the totality of the circumstances and proportional representation approaches have
previously been rejected.
As before, Plaintiffs argue that they should be permitted to go to trial and develop the facts
from which a standard will emerge. They contend, “Nothing in Justice Kennedy’s opinion in Vieth
forecloses the development of the contours of a standard based on the particular facts before the
court” and that “a trial would be needed to develop the facts logically follows from the principles
suggested in Justice Kennedy’s opinion.” Docket no. 1055 at 5. However, development of a clear,
manageable, and politically neutral standard for measuring the burden on representational rights
should not depend on development of the factual record. Rather, the development of facts should
alter only the application of the established standard and the ultimate conclusion from such
application. Further, the Court previously rejected this argument, noting that the Court in Vieth
dismissed the claim under Rule 12(b)(6) based on insufficiency of the complaint when plaintiffs did
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not allege a manageable standard and language from Justice Kennedy’s opinion in LULAC indicating
that a standard is necessary to state a claim for relief. Docket no. 285 at 22.
Accordingly, the Court concludes that Defendants’ motion to dismiss the political
gerrymandering claims against the 2013 plans should be granted pursuant to Rule 12(c) for failure
to state a claim.
Conclusion
Defendants’ motion to dismiss (docket no. 995) is GRANTED IN PART AND DENIED IN
PART. The motion to dismiss the 2011 plan claims as moot is DENIED and the motion to dismiss
the political gerrymandering claims against the 2013 plan claims is GRANTED. Accordingly, all
claims asserted by TDP and Morris are DISMISSED. The Court expresses no view on the ultimate
merits or chances of success of the claims that remain for decision.

SIGNED on this 17th day of June, 2014.
_______________/s/__________________
ORLANDO L. GARCIA
UNITED STATES DISTRICT JUDGE
_______________/s/__________________
JERRY E. SMITH
UNITED STATES CIRCUIT JUDGE

_______________/s/__________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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