Perez et al v. Perry et al
Filing
1324
ORDER DENYING 1319 Motion for Preliminary Injunction on Implementation of 2013 Redistricting Plans for 2016 Election Cycle. Signed by Judge Orlando L. Garcia, Judge Jerry E. Smith and Judge Xavier Rodriguez. (aej)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
SHANNON PEREZ; HAROLD
DUTTON, JR.; GREGORY TAMEZ;
SERGIO SALINAS; CARMEN
RODRIGUEZ; RUDOLFO ORTIZ;
NANCY HALL and DOROTHY DEBOSE
Plaintiffs
v.
STATE OF TEXAS; GREG ABBOTT,
in his official capacity as Governor of the
State of Texas; DAN PATRICK,
in his official capacity as Lieutenant
Governor of the State of Texas; JOE
STRAUS, in his official capacity as Speaker
of the Texas House of Representatives;
CARLOS H. CASCOS, in his official
capacity as Secretary of State of the
State of Texas
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CIVIL ACTION NO.
11-CA-360-OLG-JES-XR
CONSOLIDATED ACTION
[Lead case]
Defendants
ORDER
Pending before the Court is the Conditional Motion for Preliminary Injunction on
Implementation of 2013 Redistricting Plans for 2016 Election Cycle (docket nos. 1319-1320) filed by
the LULAC plaintiffs, NAACP plaintiffs, Perez plaintiffs, Quesada plaintiffs, and Rodriguez plaintiffs.
The United States, MALC, Texas Latino Redistricting Task Force, and the Congresspersons did not join
in the motion. Defendants filed a response in opposition (docket nos. 1321-1322) and the movants filed
a reply (docket no. 1323). After reviewing the record, the parties’ briefs, and the applicable law, the
Court finds that status quo should not be altered and the motion for preliminary injunction should be
DENIED. The 2016 elections will proceed as scheduled, without interruption or delay, under plans
H358 and C235.
Plaintiffs seek to enjoin the implementation of the 2013 Texas House and Congressional
redistricting plans (H358 and C235) for the 2016 elections. To prevail on their motion, the moving
plaintiffs must satisfy the four part test for preliminary injunctive relief: (1) that they are likely to succeed
on the merits; (2) that they are likely to suffer irreparable harm in the absence of preliminary relief; (3)
that the balance of equities tips in their favor; and (4) that an injunction is in the public interest. Winter
v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S. Ct. 365, 374 (2008); Texans for Free Enterprise
v. Tex. Ethics Comm’n, 732 F.3d 535, 536-37 (5th Cir. 2013); FED. R. CIV. P. 65.
This case began with legal challenges to redistricting plans H283 and C185, enacted by the 82nd
Texas legislature and signed into law on June 17 and July 18, 2011. See docket no. 275. The undersigned
three judge panel held an expedited bench trial on the merits of the claims against the 2011 plans in midSeptember 2011. Docket nos. 301, 305, 309-311, 332, 336. However, the law in effect at that time
precluded the Court from issuing a decision on the merits until there was a determination on Section
5 preclearance. At the end of September 2011, the Court enjoined implementation of the 2011 plans
because they had not been precleared. Docket no. 380. In October 2011, the Court undertook the task
of devising interim court drawn plans for the 2012 elections. At the end of November 2011, a majority
of the Court adopted plans H302 and C220 as interim plans for the 2012 elections. Docket nos. 528,
544. Defendants appealed to the United States Supreme Court, which stayed implementation of the
interim plans pending a decision. Docket no. 562. In January 2012, the Supreme Court vacated the
orders implementing the interim plans, and remanded with instructions to redraw the plans under the
following standards and guidelines: (1) for those districts being challenged under the Constitution and
Section 2, the districts drawn by the State would not be altered except to the extent that plaintiffs could
show a likelihood of success on the merits (i.e. the traditional preliminary injunction standard); and (2)
for those districts being challenged under Section 5 in the District of Columbia, the State’s plan would
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not be altered unless there was a “reasonable probability” that the plan would fail to gain Section 5
preclearance; in other words, the Section 5 challenges were “not insubstantial.” Perez v. Perry, 132 S. Ct.
934 (2012)(per curiam). Docket no. 575.
In February 2012, the Court resumed the process of devising a second set of interim court
drawn plans, guided by the standards in the Supreme Court’s opinion. After extensive hearings and
briefing, and tremendous cooperation from parties on both sides, the Court adopted plans H309 and
C235 as interim plans for the 2012 elections. Docket nos. 681-682; 690-691. None of the parties
appealed. About six months later, the LULAC plaintiffs sought to stay implementation of the
Congressional plan, but this Court and the Supreme Court both denied the request. Docket nos. 718,
722. Thus, plans were finally in place for the 2012 elections, but it was the third set of redistricting plans
in eight months. Many of the deadlines for the federal, state, county, and local elections were altered
during the 2012 election cycle and there was great uncertainty among election officials, candidates, and
voters as a result of the change in redistricting plans. See docket nos. 486, 558, 683, 685, 689, 703.
In August 2012, the D.C. district court issued its preclearance decision on the 2011 plans. Texas
v. United States, 887 F. Supp. 2d 133 (D.D.C. 2012), vacated and remanded, 133 S. Ct. 2885 (2013). On June
23, 2013, the 83rd Texas legislature adopted plans H358 and C235 and the bills were signed into law on
June 26, 2013. On June 25, 2013, the U.S. Supreme Court issued its decision in Shelby County, Alabama
v. Holder, 133 S. Ct. 2612 (2013), holding the coverage formula in Section 4(b) of the Voting Rights Act
unconstitutional and thus relieving the State of Texas from its legal obligation to seek preclearance under
Section 5. Thus, the 2013 plans are not subject to Section 5 preclearance.
In September 2013, the Court granted plaintiffs leave to amend and/or supplement their
pleadings to assert claims against the 2013 redistricting plans under Section 2 and the Constitution, and
to assert relief under Section 3(c) of the Voting Rights Act. Docket no. 886. At the same time, the
Court denied defendants’ request to dismiss the 2011 claims as moot. Id. In its September 2013 order,
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the Court also held that there was insufficient time for a full, fair, and final review of all issues prior to
the 2014 elections and the 2013 plans (H358 and C235) could be used on an interim basis for the 2014
elections. Id. The Court explained as follows:
Plan C235 was adopted by the Court as the interim plan for the districts used to elect
representatives in 2012 to the United States House of Representatives. Docket no. 681. The
Court adopted the plan after making the requisite preliminary findings as required by the
Supreme Court’s decision in Perry v. Perez. Docket no. 691. When the Texas Legislature met
during special session, it adopted Plan C235 in its entirety without any changes. Thus, to the
extent that Perry v. Perez requires the Court to conduct a preliminary injunction analysis (i.e.,
likelihood of success on the merits), it has already done so. And to the extent that Perry v. Perez
requires the Court to defer to the policy judgment of the Texas Legislature, it has done so.
Plan H309 was adopted by the Court as the interim plan for the districts used to elect
representatives to the Texas House of Representatives in 2012. Docket no. 682. The Court
adopted Plan H309 after making the requisite preliminary findings as required by the Supreme
Court’s decision in Perry v. Perez. Docket no. 690. When the Texas Legislature met during
special session, it made slight changes to Plan H309, and newly enacted Plan H358 incorporated
those changes. The changes to the Texas House plan affect very small portions of Tarrant,
Dallas, Harris, and Webb counties. Of the 150 districts in the Texas House map, the lines of
only 14 districts shifted slightly. Of those 14 districts, the loss or gain of registered voters is
minimal. Because the changes to the Texas House plan were so minimal, only one new legal
challenge arose. That challenge, brought by the Latino Task Force, is a claim that the Hispanic
voting strength in HD 90 has been diluted.
Again, to the extent that Perry v. Perez requires the Court to defer to the policy judgments of the
Texas Legislature, it has done so. And the Court has already conducted a preliminary injunction
analysis of Plaintiffs’ legal challenges, with the exception of the new challenge to HD 90.
To fully comply with the mandate in Perry v. Perez, the Court has conducted a preliminary review
of the new challenge to HD 90 and is unable to conclude that the Latino Task Force is likely
to succeed on the merits of its claim.
Docket no. 886, pp. 22-24.
The Court also noted that Section 5, previously an impediment to implementation of the enacted
plans, was no longer an obstacle. And while some plaintiffs are requesting equitable relief under Section
3(c) of the Voting Rights Act, coverage under Section 3(c) is not triggered unless or until the Court finds
that the requirements of that section have been met and equitable relief is appropriate. See 42 U.S.C.
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1973a.1 Thus, the Court allowed the 2014 elections to proceed under the 2013 redistricting plans on
an interim basis.
Thereafter, the parties continued litigating the claims relating to the 2011 and 2013 plans. Due
to the number of claims, the complexity of the issues, and the volume of evidence, the Court decided
to hold a second trial on the claims against 2011 plans and then make a final determination on those
claims before proceeding to trial on the claims against the 2013 plans. Docket nos. 1052, 1123. The
Court held its second trial on the merits of the claims against the 2011 House plan (H283) and
Congressional plan (C185) in July and August 2014. Docket nos. 1166-1171, 1192, 1209, 1212-1217,
1243. The parties continued to supplement the record after trial, and filed their post trial briefs and
proposed findings of fact and conclusions of law. The Court has been working diligently and has made
substantial progress toward resolution of the claims on the 2011 plans; however, it has not yet reached
a final decision. Trial on the merits of the claims against the 2013 plans has not been scheduled, and
legal challenges to the 2013 plans will not be resolved before the 2016 election cycle.
While movants’ concerns about the upcoming 2016 elections are understandable, they must
meet all four legal requirements for preliminary injunctive relief. After due consideration, the Court
find that movants have not shown a likelihood of success on the merits or that the threatened injury
outweighs the harm that will come from delaying the election and altering the district lines once again.
A.
Likelihood of success on the merits:
To reiterate, plan C235 was adopted by the Court in 2012 after making the requisite preliminary
findings as required by the Supreme Court in Perry v. Perez. Docket no. 691. When the 83rd Texas
Legislature met during special session, it adopted Plan C235 in its entirety without any changes. Thus,
the plan that movants seek to enjoin is the product of the Court’s preliminary injunction analysis.
1
Editorially transferred to 52 U.S.C. § 10302.
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Movants have not shown that scrutinizing the same plan under the same preliminary injunction analysis
would produce a different outcome today.
Likewise, the Court adopted plan H309 in 2012 after making the requisite preliminary findings
as required by the Supreme Court in Perry v. Perez. Docket no. 690. When the 83rd Texas Legislature
met during special session, it made slight changes to Plan H309, and newly enacted Plan H358
incorporated those changes. The only change that led to a new legal challenge was the change to HD
90, and that challenging party, Latino Task Force, is not a movant herein. Thus, the parts of plan H309
being challenged by the movants are the product of the Court’s prior preliminary injunction analysis,
and they have not shown that applying the same analysis today would produce a different result.
Movants assert that “[o]nce liability for [the 2011] plans is declared under the Constitution and
Section 2, it is clear that the interim remedy adopted by the Court in 2012 and enacted by the State in
2013 (with only a modest variation in the House plan) fail to fully remedy the violations.” Docket no.
1319, p. 3. However, the Court has not made a final decision on whether violations exist in the 2011
plans. A full and final remedy, after resolution of the merits, may differ from the plans that arose from
the Court’s preliminary analysis. But that is not the standard that applies for purposes of the instant
motion.
Movants also claim they have demonstrated that the 2011 plans were enacted for an invidious
racial purpose and the Court should invoke the bail-in provisions of Section 3 and require preclearance
of the 2013 plans before allowing them to be used for any election. However, invoking the bail-in
provisions of Section 3(c) requires a prior determination on the merits of the constitutional claims, and
not just a preliminary analysis under rule 65.
B.
The balance of harm/threatened injury:
As the defendants have noted, the 2016 election cycle has already begun. The filing period for
the office of precinct chair opened on September 15, 2015. The filing period for all other offices opens
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on November 14, 2015.2 Even if movants could show a likelihood of success on the merits, the Court
must balance the need to protect voting rights that may be affected by the 2013 plans with the need to
avoid the adverse effect on voting rights that comes with delay and confusion during election time. If
the Court enjoined the 2013 enacted plans and imposed yet another set of interim plans for the 2016
election, the shifting district and precinct lines would leave candidates in limbo, voters confused, and
election officials with the burden of implementing new maps in a timely manner with very limited
resources. It would be extremely difficult to implement new interim plans without tremendous
interruption to the 2016 election schedule. The balance of equities does not tip in movants’ favor.
For these reasons, the Conditional Motion for Preliminary Injunction on Implementation of
2013 Redistricting Plans for 2016 Election Cycle (docket nos. 1319-1320) filed by the LULAC plaintiffs,
NAACP plaintiffs, Perez plaintiffs, Quesada plaintiffs, and Rodriguez plaintiffs is DENIED. The Court
ORDERS that the 2013 enacted plans for the United States House of Representatives (C235) and the
Texas House of Representatives (H358) are to be used as interim plans for the 2016 elections. The
plans are being used on an interim basis only, and nothing in this order should be construed as a ruling
on the merits of any claims, causes of action, requests for relief, or defenses that have been asserted in
this consolidated action.
IT IS SO ORDERED this 6th day of November, 2015.
_____________/s/___________________
JERRY E. SMITH
UNITED STATES CIRCUIT JUDGE
_____________/s/____________________
ORLANDO L. GARCIA
UNITED STATES DISTRICT JUDGE
___________/s/_________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE
2
http://www.sos.state.tx.us/elections/voter/2016-important-election-dates.shtml
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