Perez et al v. Perry et al

Filing 1632

ORDER, the various requests for discretionary relief under § 3(c) are hereby denied. Signed by Judge Xavier Rodriguez. (aej)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
SHANNON PEREZ, ET AL.,
Plaintiffs,
v.
GREG ABBOTT, ET AL.,
Defendants.

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Civil Action No. SA-11-CV-360

ORDER ON REQUEST FOR § 3(c) RELIEF
Before Chief District Judge GARCIA, Circuit Judge SMITH, and District Judge RODRIGUEZ
XAVIER RODRIGUEZ, District Judge:
On this date, having heard extensive oral argument on May 2, 2019, the Court
considered the Plaintiffs’ request for bail-in relief under Section 3(c) of the Voting Rights Act
(“VRA”). Although the Court’s findings of intentional racial discrimination in violation of the
Fourteenth Amendment with regard to the 2011 plans are sufficient to trigger bail-in, and
although the Court has serious concerns about the State’s past conduct, the various requests for
discretionary relief under § 3(c) are hereby denied.
I. Background
Section 3(c) of the VRA, entitled “Retention of jurisdiction to prevent commencement
of new devices to deny or abridge the right to vote,” empowers a court, in a proper case, to
impose a preclearance remedy on states. See Jeffers v. Clinton, 740 F. Supp. 585, 587 (E.D.
Ark. 1990), aff’d, 498 U.S. 1019 (1991). Section 3(c) provides:
If in any proceeding instituted by the Attorney General or an aggrieved person
under any statute to enforce the voting guarantees of the fourteenth or fifteenth

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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 no voting qualification or
prerequisite to voting or standard, practice, or procedure with respect to voting
different from that in force or effect at the time the proceeding was commenced
shall be enforced unless and until the court finds that such qualification,
prerequisite, standard, practice, or procedure does not have the purpose and will
not have the effect of denying or abridging the right to vote on account of race
or color, or in contravention of the voting guarantees set forth in section
10303(f)(2) of this title: Provided, That such qualification, prerequisite,
standard, practice, or procedure may be enforced if the qualification,
prerequisite, standard, practice, or procedure has been submitted by the chief
legal officer or other appropriate official of such State or subdivision to the
Attorney General and the Attorney General has not interposed an objection
within sixty days after such submission, except that neither the court's finding
nor the Attorney General’s failure to object shall bar a subsequent action to
enjoin enforcement of such qualification, prerequisite, standard, practice, or
procedure.
52 U.S.C. § 10302(c).
Initially, jurisdictions not automatically subject to preclearance via the § 4 coverage
formula were the subject of § 3(c) preclearance “bail-in” proceedings, since § 3(c) was
intended to apply to the “so-called ‘pockets of discrimination’ . . . outside the States and
political subdivisions as to which the prohibitions of section 4(a) [were] in effect.” See H.R.
Rep. No. 89-439 (1965), at 2454. However, “[i]t reaches denials and abridgments of the right
to vote on account of race or color wherever they may occur throughout the United States.” Id.
Since the Supreme Court invalidated the § 4 coverage formula in Shelby County v. Holder,
570 U.S. 529 (2013), at least two federal courts have bailed in cities that were previously
subject to preclearance.1

1

Allen v. City of Evergreen, No. 13-0107-CG-M, 2014 WL 12607819 (S.D. Ala. Jan. 13, 2014)(agreed
bail-in order for changes to city council election districts and standards for determining voter eligibility for
2

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Certain Plaintiffs contend that tailored bail-in relief is warranted in this case, while
Defendants and the United States oppose its application.2 MALC and the Texas Latino
Redistricting Task Force (collectively “Task Force Plaintiffs”) contend that a § 3(c) remedy
requiring preclearance of U.S. and Texas House plans until 2030 is appropriate because Texas
committed constitutional violations that § 3(c) is meant to address. Docket no. 1604 at 7.
The NAACP, LULAC, Perez, Rodriguez, African-American Congresspersons, and
Quesada Plaintiffs (collectively “NAACP Plaintiffs”) move the Court to require Texas to
submit for preclearance any statewide redistricting plans for a period beginning before the next
decennial redistricting cycle and ending no sooner than five years after the entry of the order.
Docket no. 1603. They contend that this Court’s findings of intentional discrimination in the
2011 Congressional and State House plans remain in place and these findings, coupled with
the historical prevalence of discrimination in voting and the “very recent history of
discrimination by the State and its localities intended to undermine the voting power of
minority voters,” justify § 3(c) relief. Docket no. 1603 at 3-5.
Defendants and the United States raise several arguments against application of § 3(c)
on the facts of this case, and further argue that relief is foreclosed by the Fifth Circuit’s recent
opinion in Veasey v. Abbott, 888 F.3d 792 (5th Cir. 2018).

municipal elections); Patiño v. City of Pasadena, 230 F. Supp. 3d 667, 729 (S.D. Tex. 2017) (requiring Pasadena
to submit future changes to its electoral map and plan for preclearance and retaining jurisdiction until 2023).
2
The United States previously supported imposing § 3(c) relief, but asserts that “the governing law and
the circumstances of this case have changed.” Docket no. 1613 at 2.
3

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II. Preliminary Challenges and Issues
A. Ripeness and Mootness Challenges to Bail-In Relief
Defendants first assert ripeness and mootness challenges to the 2011 plan claims as a
basis for arguing that Plaintiffs cannot get bail-in relief. The Court rejects those arguments.
Although this Court was unable to decide the full merits of the § 2 and constitutional claims in
2012 while the preclearance proceedings were pending, Plaintiffs were “aggrieved persons”
under the VRA and their claims were ripe. If not, this Court would not have been instructed to
order interim relief on those claims by the Supreme Court in Perry v. Perez, 565 U.S. 388
(2012). The Supreme Court held that this Court should examine Plaintiffs’ § 2 and
constitutional claims under a preliminary-injunction type standard and take care not to
implement an unconstitutional interim plan. Thus, Plaintiffs’ claims had to be resolved at least
preliminarily and were ripe for consideration.
Nor does the fact that the 2011 plans never went into effect and were repealed by the
Legislature in 2013 when the new plans were enacted render the intentional vote dilution
claims and the request for bail-in relief moot, as this Court has already decided. See, e.g.,
docket no. 1390 at 6. The Court will not repeat its prior analysis here. However, both sides
argue that the recent Fifth Circuit opinion Veasey v. Abbott, 888 F.3d 792 (5th Cir. 2018)
supports their position on mootness. Veasey was in a different procedural posture and does not
control this case. But because Defendants and the United States also rely on Veasey to argue
that § 3(c) relief is foreclosed, the Court will examine Veasey in detail.
Veasey v. Abbott concerned Texas’s voter ID law. The State enacted SB14 in 2011,
generally requiring voters to present one of five forms of government-issued identification in
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order to vote. A group of plaintiffs (Marc Veasey et al.) challenged SB14 as intentionally
racially discriminatory, and the district court permanently enjoined its implementation, finding
both that it had unlawful effects under the “effects test” of § 2 of the VRA and because Texas
enacted SB14 at least in part because of its adverse effect on minority voters. Veasey, 888 F.3d
at 796 (citing Veasey v. Perry, 71 F. Supp. 3d 627, 694 (S.D. Tex. 2014)). On appeal, the Fifth
Circuit affirmed the finding that SB14 had an unlawful disparate impact (sustaining the § 2
VRA effects claim) but reversed the discriminatory purpose determination, finding that the
district court improperly relied on certain facts. The Fifth Circuit remanded for further
proceedings, including a redetermination of the discriminatory purpose issue and entry of an
interim remedy before the 2016 elections.
In August 2016, the district court entered an interim remedy agreed to by all parties,
following the Fifth Circuit’s direction to “honor the State’s policy preferences to implement a
photo-ID system.” Id. Under the interim remedy, voters who lacked an SB14 ID could cast a
regular ballot upon completing a Declaration of Reasonable Impediment and presenting a
specified form of identification. Id. The interim remedy was used for the November 2016
election and remained in place pending further order of the court, with the understanding that
all parties preserved their right to seek or oppose further relief. Id. at 796-97.
In February and March 2017, the Texas Legislature informed the district court about
legislation being considered during the 2017 session “to adjust SB 14 to comply with the Fifth
Circuit’s decision.” Id. at 797. However, the district court proceeded to issue an opinion on the
SB14 discriminatory purpose claim on April 1, 2017, again finding that SB14 was enacted, at

5

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least in part, for a racially discriminatory purpose. SB5 was then enacted on May 31, 2017 as a
legislative remedy to cure and replace SB14, and was fashioned after the interim remedy.
Texas moved for reconsideration of the district court’s discriminatory purpose finding
in light of the amendment, and the plaintiffs never sought leave to amend their Complaint to
add claims specifically challenging SB5. Id. at 797-98. The district court denied Texas’s
motion, and entered a remedial order permanently enjoining SB14 and SB5, vacating the
interim remedy, and reinstating the pre-SB14 law that lacked any voter ID requirement. It held
that the interim remedy was limited to addressing the VRA § 2 effects claim, and in light of its
finding of discriminatory purpose, the interim relief was no longer appropriate and broader
relief was warranted. Further, although it did not find that SB5 violated § 2 of the VRA, it
reasoned that its finding of discriminatory intent warranted a wholesale injunction because
SB5 was built upon the architecture of SB14. The district court then ordered commencement
of a § 3(c) bail-in hearing and issued broad relief enjoining the State from enforcing SB14 and
SB5. Id. at 798.
On appeal, Texas argued that the case had become moot by the passage of SB5 in
2017, requiring vacatur of the court’s finding of intentional discrimination on remand. The
Fifth Circuit rejected the mootness argument. Although it recognized that ordinarily a statute
would become moot by the passage of a superseding law and a prior ruling would be vacated,
it noted that the case was not “archetypal.” Id. at 799. Instead, the Fifth Circuit had remanded
to the district court with instructions to assume the “unwelcome obligation” of devising an
interim remedy to eliminate the § 2 violations, reconsider the discriminatory purpose finding
without the facts the appellate court held inapposite, and be mindful that any new law
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subsequently passed would present new circumstances. Id. The Fifth Circuit noted that the
posture was similar to Mississippi State Chapter, Operation PUSH, Inc. v. Mabus, 932 F.2d
400 (5th Cir. 1991), in which the court evaluated both the liability findings and the new law,
and there was no suggestion of mootness arising from the passage of the responsive
legislation, which was analyzed for its effectiveness as a proposed remedy. The Fifth Circuit
recognized that the issues on appeal in Veasey were “the status of the state’s liability for
intentional discrimination against indigent minority voters, and whether the district court
abused its discretion in rejecting SB5 as a remedy for the Plaintiffs’ claims.” Id.
Plaintiffs in this case assert that the Fifth Circuit’s holding that issues concerning
liability regarding SB14 were not mooted by the passage of SB5 in Veasey supports a finding
that their claims against the 2011 plans were not mooted by the passage of the 2013 plans.
Defendants argue that language in the opinion concerning the typical effect of a new law—
mooting claims against the old law and vacating prior opinions—supports a mootness finding.
But as noted, Veasey was in a different procedural posture from this case. The district court
had made final liability determinations shortly before the passage of the new law, and the
district court was therefore already at the remedy stage when the new law was passed. The
principal issue was the State’s continuing liability based on those final liability findings
concerning SB14, and whether the new law (SB5) was an appropriate remedy.
In contrast, although this Court had made some preliminary determinations on liability,
it had not made final determinations at the time the 2013 plans were enacted, and this case was
not at the remedy phase. Thus, Veasey does not directly support Plaintiffs’ position that their
2011 plan claims were not moot, though the Fifth Circuit did not dismiss the claims against
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SB14 and vacate the district court’s findings on liability based on the passage of SB5, as
suggested by Judge Higginbotham’s concurrence. But Veasey’s general language on mootness
does not undermine this Court’s conclusion that the 2011 plan claims were never mooted, as
Defendants argue, given the particular posture and claims presented here. Like Veasey, this is
also not the “archetypal” case, and the 2011 plan claims are not moot for the reasons this
Court has explained in prior orders.
That this is so is further supported by the Supreme Court’s decision in Abbott v. Perez,
even though the Supreme Court expressed no direct opinion on the mootness issue. See Abbott
v. Perez, 138 S. Ct. 2305, 2317 & n.8 (2018) (noting that this Court reasoned that the repeal of
the 2011 plans represented the “voluntary cessation” of allegedly unconstitutional conduct,
and stating, “We express no view on the correctness of this holding.”).3 After the 2013 plans
were enacted, the claims before the Court included claims that the Texas Legislature
intentionally maintained the discriminatory aspects of the 2011 plans when it enacted the 2013
plans (as well as an additional claim by the Texas Latino Redistricting Task Force that the
Legislature violated the Fourteenth Amendment when it racially gerrymandered the changes to
HD90 in 2013 (the Shaw-type claim)). Resolution of the discriminatory purpose claims
required the Court to determine the ways in which the Legislature purposefully discriminated
in 2011 as well as the ways in which the Legislature did so in 2013. See Abbott, 138 S. Ct. at
2327 (“[B]oth the intent of the 2011 Legislature and the court’s adoption of the interim plans
are relevant to the extent that they naturally give rise to—or tend to refute—inferences

Although the Supreme Court later referred to the 2011 plans as “moot plans” in a footnote, 138 S. Ct.
at 2328 n.22, that reference does not mean that the Court believed the claims against those plans were moot.
Plans can be moot without the claims against those plans being moot.
3

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regarding the intent of the 2013 Legislature.”). Thus, the discriminatory intent of the
Legislature in 2011 was necessarily examined.
Upon examination, this Court found that the Texas Legislature intentionally
discriminated in 2011 in numerous and significant ways. The Court then found that the
Legislature intentionally maintained the racially discriminatory aspects of the 2011 Texas
House and Congressional plans when it enacted the interim plans in 2013, and that its true
purpose in enacting the plans was not to comply with the VRA but to insulate itself from
further liability for the discriminatory aspects of the plans, including potential bail-in relief.
Though the Supreme Court reversed this Court’s holding that the Legislature intentionally
discriminated in 2013, it never addressed or in any way called into question this Court’s
findings as to the Legislature’s discriminatory purpose in enacting the 2011 plans. Whether the
Legislature violated the Fourteenth Amendment by intentionally discriminating against
minority voters in 2011 has always remained a central issue of this litigation. Having found
that it did, as required by the circumstances of this litigation, the Court must now determine
whether bail-in relief is appropriate based on those findings.
B. Whether bail-in relief requires a final determination with accompanying relief?
Defendants further contend that Plaintiffs may not obtain bail-in relief because it is
only a supplemental remedy and may not be imposed until a plaintiff prevails on a live claim.
Relatedly, they argue that the Court cannot find that “violations of the fourteenth or fifteenth
amendment . . . have occurred” as a result of the 2011 plans because they were never used and
Plaintiffs were never injured by them. Docket no. 1612 at 8-9. The Court rejects these
arguments.
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The language of § 3(c) states that the Court may provide bail-in “in addition to such
relief as it may grant.” This Court has granted Plaintiffs relief in the form of an injunction
against the use of the 2011 plans4 and the issuance of interim remedy plans.5 Thus, bail-in
relief would be “in addition to such relief.” Moreover, no court has held that bail-in relief may
be awarded only upon a final judgment on a claim presented in the case accompanied by an
award of final equitable relief on that claim. In its prior briefing on the application of § 3(c) in
this case, the United States stated that “[n]othing in the statute’s text supports Texas’s
argument that Section 3(c) relief can be imposed only after a final judgment of intentional
discrimination” and “[s]o long as ‘the court finds that violations of the fourteenth or fifteenth
amendment justifying equitable relief have occurred,’ the court can impose relief under
Section 3(c).” Docket no. 827 at 5 n.4. In the leading case on bail-in relief, Jeffers v. Clinton,
740 F. Supp. 585 (E.D. Ark. 1990), the court held that the plaintiffs failed to establish that the
1981 Arkansas reapportionment plan was motivated by a racially discriminatory purpose, but
it nevertheless considered and found other constitutional violations that justified a limited
preclearance remedy.
Further, the scope of § 3(c) indicates that a court may find that violations of the
fourteenth amendment occur when the Legislature enacts plans in violation of those
amendments, regardless of whether they are never implemented because plaintiffs successfully
obtain preliminary or interim relief and the Legislature then voluntarily amends the plans.
Surely it contemplates situations in which the court enjoins a challenged law from ever taking
The Court enjoined the use of Plan H283 and Plan C185 and the parties “agreed that the relief . . .
[would] be effective as a permanent injunction.” Docket no. 380.
4

5

Docket no. 681 (Plan C235) and docket no. 682 (Plan H309).
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effect because it violates voting rights guaranteed by the Constitution and then issues
additional bail-in relief to prevent future attempts to circumvent those same voting rights.
Courts need not permit elections to proceed under an unconstitutional and discriminatory plan
to award bail-in relief.
The remaining arguments center on whether the facts of this case justify the
extraordinary remedy of bail-in, including specifically whether the necessary pre-conditions
exist in terms of what types of violations (and by whom) count as triggers and whether they
are significant enough to justify bail-in. Thus, the Court now turns to its analysis of whether
bail-in relief can and should be awarded in this case.
III. Merits Analysis of Request for Bail-in Relief
The most thorough analysis and discussion in the case law of § 3(c) and its
requirements remains Jeffers v. Clinton, 740 F. Supp. 585 (E.D. Ark. 1990), which imposed
bail-in relief on the State of Arkansas.6 There, the district court framed the inquiry as (1)
whether violations of the Fourteenth or Fifteenth Amendments justifying equitable relief have
occurred within the State or its political subdivisions, and (2) whether, if so, the remedy of
preclearance should be imposed. The Court will apply this same general framework.
A. Whether violations of the Fourteenth or Fifteenth Amendments justifying equitable
relief have occurred within the State or its political subdivisions?
To trigger bail-in, § 3(c) requires that (a) violations of the Fourteenth or Fifteenth
Amendments (b) justifying equitable relief (c) have occurred (d) within the State or its
political subdivisions. 52 U.S.C. § 10302(c). The Court first considers what types of violations
6

Two recent cases have addressed § 3(c), but neither expended much analysis in deciding to impose
relief, Patiño v. City of Pasadena, 230 F. Supp. 3d 667 (S.D. Tex. 2017), or reject it, North Carolina State
Conference of NAACP v. McCrory, 831 F.3d 204 (4th Cir. 2016).
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of the Fourteenth of Fifteenth Amendments may act as a trigger to impose bail-in relief upon
the State of Texas as requested. This inquiry requires us to decide (1) whether Shaw-type
violations or other Fourteenth Amendment violations aside from those requiring intentional
racial animus may be considered, (2) whether this Court’s findings of intentional racial voting
discrimination in 2011 may be a trigger, (3) whether Texas’s constitutional violations in
addition to those made the subject of this suit may be a trigger, (4) the extent to which
violations by political subdivisions inside Texas may be considered; and (5) the extent to
which DOJ preclearance objections may be considered.
1. Shaw-type violations in HD90 in 2013 and other Fourteenth Amendment violations
that lack a finding of intentional racial discrimination
The Task Force Plaintiffs and Defendants contest whether the Shaw-type racial
gerrymandering found in HD90 in the 2013 plans could trigger bail-in as a “violation of the
voting guarantees of the Fourteenth Amendment,” or whether bail-in relief must be limited to
violations based on findings of invidious racially discriminatory purpose.7 The Task Force
notes that the statutory language “is not limited.” Both types of claims are based on violations
of the Fourteenth Amendment, but a Shaw-type claim does not require a racially
discriminatory purpose; it requires only an improper focus on race, regardless of
discriminatory motive.
The Jeffers court concluded that the statute imposes a requirement of proof of
conscious racial discrimination, with a preponderance of the evidence burden of proof. Jeffers,

7

No court seems to have directly considered this question, and a law review note poses it as an open
question. Travis Crum, The Voting Rights Act’s Secret Weapon: Pocket Trigger Litigation and Dynamic
Preclearance, 119 YALE L.J. 1992, 2035 (June 2010).

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740 F. Supp. at 589. And the United States has consistently asserted that a finding of a
violation of the voting guarantees of the Fourteenth Amendment requires a finding of
intentional voting discrimination. See docket no. 827 at 3. The Court agrees, and concludes
that triggering violations for bail-in relief must be violations of Fourteenth and Fifteenth
Amendment protections against intentional racial discrimination in voting. Thus, a Shaw-type
Fourteenth Amendment claim, without a finding of racially discriminatory purpose, is not a
finding that supports bail-in relief. Unlike an intentional vote dilution claim, a Shaw-type
racial gerrymandering claim is not focused on abridging the right to vote, but on an improper
use of race regardless of discriminatory purpose, and § 3(c) aims to remedy voting changes
that have the purpose and effect “of denying or abridging the right to vote on account of race
or color.” 52 U.S.C. § 10302(c).8 Because the violation found in HD90 in 2013 was a racial
gerrymander without an accompanying finding of intentional discrimination, it will not trigger
bail-in relief.
The Court also rejects a conclusion that malapportionment and/or one person, one vote
(“Larios-type claims”) under the Fourteenth Amendment may trigger bail-in relief, absent any
finding of purposeful racial discrimination underlying the population deviations. See
Blackmoon v. Charles Mix Cty., 505 F. Supp. 2d 585, 592 (D.S.D. 2007) (finding
malapportionment Fourteenth Amendment claim insufficient to trigger bail-in relief because
without establishing racial discrimination, it would be “nonsensical” to require the State to
8
The Court is further persuaded by Defendants’ argument that a Shaw-type voting claim was not yet
recognized by the Supreme Court when § 3(c) was enacted. Docket no. 1612 at 15 (noting that the Supreme Court
first recognized Shaw-type racial gerrymandering claims in 1993 in Shaw v. Reno, 509 U.S. 630 (1993), and thus
Congress did not have those claims in mind when it enacted and amended the § 3 remedial provisions of the
VRA).

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prove that any future change “does not have the purpose and will not have the effect of
denying or abridging the right to vote on account of race or color or [language group]”).
Similarly, Shaw-type violations and § 2 violations found in Texas’s past apportionment
plans are insufficient bases for bail-in relief. Thus, although Texas has been found to have
violated § 2 and committed Shaw-type violations of the Fourteenth Amendment in more recent
districting cycles, those will not trigger bail-in relief. Although the Supreme Court noted in
2006 that Texas’s actions with regard to congressional district 23 bore “the mark of intentional
discrimination,” the Court did not make affirmative findings of a Fourteenth Amendment
violation, instead resting its holding on a § 2 effects claim. LULAC v. Perry, 548 U.S. 399,
440 (2006).
2. this Court’s findings of intentional voting discrimination in the 2011 plans
The Court thus turns to whether an award of bail-in relief can be triggered by its
findings of intentional discrimination with regard to the 2011 plans. This Court found that
Texas’s 2011 Congressional and State House plans were both motivated by racially
discriminatory purpose. Docket no. 1390 (Order on Plan C185); docket no. 1340 (Fact
Findings for Order on Plan C185); docket no. 1365 (Order on Plan H283); docket no. 1364
(Fact Findings for Order on Plan H283).
With regard to the Texas House Plan, Plan H283, the Court found that the overall plan
was the product of intentional vote dilution and that it was based on “invidious discriminatory
purpose.” Docket no. 1365 at 83 (“The Court agrees that the overall configuration of Plan
H283 is the product of intentional vote dilution” and “[t]he impact of the plan was certainly to
reduce minority voting opportunity statewide, resulting in even less proportional
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representation for minority voters.”), id. at 84 (“[T]he Court finds invidious discriminatory
purpose underlies Plan H283.”). The Court further found that districts in many counties across
Texas were the product of intentional discrimination/intentional vote dilution, including El
Paso County, id. at 27-28 (“the Court finds that mapdrawers intentionally diluted the Latino
vote in violation of § 2 of the VRA and the Fourteenth Amendment with regard to HD78”);
Bexar County, id. at 32 (“the Court finds that mapdrawers intentionally diluted the Latino vote
in HD117 in violation of § 2 and the Fourteenth Amendment”); Nueces County, id. at 38-40
(mapdrawers intentionally eliminated HD33 in Nueces County and “offset” the loss of a
Latino opportunity district by unnecessarily inflating the SSVR of an already performing
district in Harris County, thus intentionally diluting Latino voting opportunity and also
intentionally racially gerrymandered the remaining Nueces County districts to further
undermine Latino voting strength); Hidalgo County, id. at 43 (“the Court finds that HD41 was
drawn in part with racially discriminatory (dilutive) motive” and that “mapdrawers
intentionally used race to draw the district to perform less favorably for Latinos” such that “the
configuration of HD41 is racially discriminatory and constitutes intentional vote dilution in
violation of § 2 and the Fourteenth Amendment”); Harris County, id. at 56 (“The Court finds
that there is persuasive evidence of intentional vote dilution in Harris County.”); Dallas
County, id. at 66-67 (“The Court does find . . . that Plaintiffs have proven an improper use of
race in western Dallas County to dilute Latino voting strength” and “intentional vote dilution
in Dallas County violates § 2 and the Fourteenth Amendment.”); Tarrant County, id. at 71
(“The Court finds that mapdrawers acted with racially discriminatory intent to dilute Latino
voting strength in Tarrant County.”); and Bell County, id. at 78 (“The Court thus finds
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evidence of intentional vote dilution in Bell County in violation of § 2 of the VRA and the
Fourteenth Amendment.”).
In the Opinion on Plan C185, this Court found that in CD23 the State intentionally split
the large Hispanic county of Maverick County and the City of Eagle Pass to exclude
politically active Hispanics who would not support the Republican incumbent, while adding in
all or parts of more Anglo counties, but nevertheless taking care to maintain SSVR and
HCVAP levels above 50%. These actions were designed to maintain theoretical opportunity
while simultaneously manipulating district population to decrease its potential effectiveness
for Latinos. Docket no. 1390 at 20. Mapdrawers manipulated Latino cohesion and turnout to
pursue the “nudge factor” proposal and create the façade of a Latino opportunity district. Id. at
20-23. It was undisputed that Latino performance in CD23 decreased, and the Court found that
CD23 was purposefully racially discriminatory. Id. at 23, 28-29.
In the Dallas-Fort Worth metroplex, the Court found that “race was used as a proxy for
political affiliation, and that this was done intentionally to dilute minority voting strength.”
Docket no. 1390 at 131. Specifically, mapdrawers intentionally wasted minority (and therefore
presumed Democrat) votes in CD30 by packing, while increasing Anglo (and therefore
presumed Republican) voting strength in neighboring districts, and they further intentionally
cracked minority population in the metroplex to limit minority population within the
Republican districts to curb the effect of continued minority growth throughout the decade. Id.
at 131-33. The Court found persuasive evidence that mapdrawers intentionally “packed and
cracked” on the basis of race with the intent to dilute minority voting strength, and thus acted
with intentionally racially discriminatory purpose. Id. at 134.
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The Court concludes that these findings of “violations of the Fourteenth Amendment”
do qualify as triggers for § 3(c) bail-in relief. These are recent findings of purposeful racial
discrimination by the State affecting significant numbers of minority voters statewide.
3. findings of intentional discrimination in the Veasey voter ID litigation and whether
Veasey precludes an award of bail-in in this case
The next issue is whether the district court’s recent findings of intentional
discrimination in the Veasey voter ID litigation may also be considered, and whether the
holding in Veasey itself precludes bail-in relief in this case. On remand, the district court in
Veasey found that Texas purposefully discriminated when it enacted the first voter ID bill (SB
14) in 2011. This finding was not disturbed on the second appeal. Rather, the Fifth Circuit held
only that “because SB 5 constitutes an effective remedy for the only deficiencies testified to in
SB 14, and it essentially mirrors an agreed interim order for the same purpose, the State has
acted promptly following this Court’s mandate, and there is no equitable basis for subjecting
Texas to ongoing federal election scrutiny under Section 3(c).” Veasey, 888 F.3d at 804.
Contrary to Defendants’ and the United States’ assertions, the Fifth Circuit did not
reject bail-in relief solely because the State acted promptly to enact the remedy plan that
mirrored the interim relief, nor did it hold that any time the State does so, bail-in relief is
precluded. Rather, the Fifth Circuit found bail-in relief inappropriate because the district court
had ordered relief that was too broad and untailored. The Fifth Circuit expressly noted that the
relief ordered “far exceed[ed] the scope of the actual violations found by the court” and that
“under the circumstances of th[e] case, the court had no legal or factual basis to invalidate SB
5, and its contemplation of Section 3(c) relief accordingly fail[ed] as well.” Id. at 801. Those
circumstances included that “SB 14 was racially discriminatory against only the subset of
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indigent minority voters and did not affect the vast majority of Texas voters of all races,” and
that courts “are bound by the requirement to tailor injunctive relief.” Id. The Court emphasized
that “relief must be tailored” more than once. Id. at 800. Thus, the district court found
discriminatory intent, but it affected only a small subset of minority voters rather than the vast
majority of Texas minority voters. In addition, the Fifth Circuit found no evidence of any
continuing discriminatory effect on minority voters, rendering potential bail-in relief an
untailored, overly broad remedy.
This case, in contrast, involves findings of intentionally discriminatory behavior
affecting minority voters statewide rather than the subset of indigent minority voters.
Numerous counties were drawn with the purpose to dilute minority voting strength in the
Texas House plan, as well as CD23 and numerous congressional districts in the Dallas-Fort
Worth metroplex in the Congressional plan. Though the Supreme Court may have found no
discriminatory purpose in 2013, it did not undermine the findings of purposeful discrimination
in 2011. These recent, statewide violations of the Fourteenth Amendment by the State are the
type to appropriately trigger the bail-in remedy against the State, and the bail-in remedy
sought by Plaintiffs would appropriately redress the violation. Thus, Veasey does not foreclose
bail-in relief in the circumstances of this case.
The United States further asserts that, because the discrimination findings in Veasey
could not support bail-in relief in that case, they cannot be used to support it in this case. The
Court disagrees. Nothing in Veasey precludes consideration of the district court’s findings of
intentional discrimination as support for application of § 3(c) relief in this case. The
discrimination finding in Veasey was insufficient to support 3(c) relief in that case because of
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its limited effect, but that purposeful discrimination may nevertheless be considered by this
Court in deciding whether to award bail-in relief in this case. Although this Court would find it
a stretch to award bail-in relief based solely on violations found in other cases, as the Jeffers
court did, consideration of the Veasey court’s findings of intentional discrimination in the
second step of the bail-in analysis is certainly appropriate.
4. recent findings of intentional discrimination by political subdivisions
Plaintiffs also urge the Court to consider Patiño v. City of Pasadena, 230 F. Supp. 3d
667, 729 (S.D. Tex. 2017), a recent case finding intentional discrimination and imposing
preclearance on the City of Pasadena, Texas. On the issue of whether other constitutional
violations could be considered as triggers, including those by political subdivisions, the Jeffers
court held that the phrase “violations of the fourteenth or fifteenth amendment justifying
equitable relief” is “not limited at all,” such that if the plaintiffs succeeded in showing other
constitutional violations besides those alleged in their attack on the apportionment plan made
the basis of the suit, preclearance would not be ruled out if the violations were sufficiently
serious and widespread to justify the drastic remedy of preclearance. Jeffers, 740 F. Supp. at
592. It further held that the statute does not require “that the State or its officials must be guilty
of the violations, but only that the violations must ‘have occurred within the territory’ of the
State.” Id. at 600 (emphasis in original). Thus, it approved consideration of both state and local
government violations. Id.
However, the Court finds that these violations should at most provide relevant context
to the second step of the bail-in analysis, and not be used as a trigger for bail-in relief. The
State was not a party to the discrimination or the litigation in Patiño. The reference to finding
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violations “within the territory of such State or political subdivision” refers back to the initial
clause of § 3(c), which provides that relief is available “in any proceeding . . . to enforce the
voting guarantees of the fourteenth or fifteenth amendment in any State or political
subdivision.” 52 U.S.C. 10302. Thus, it simply makes clear that political subdivisions such as
cities may be subjected to § 3(c) relief based on their own violations, and does not mean that a
State may be subjected to bail-in based on violations by its political subdivisions.
5. objections to preclearance by the Department of Justice in § 5 proceedings
The fact that the Department of Justice has lodged numerous § 5 objections against
Texas’s redistricting plans over the years does not establish that violations of the Fourteenth or
Fifteenth Amendment have occurred. A jurisdiction seeking preclearance must prove that its
proposed voting change has neither the purpose nor the effect of denying or abridging the right
to vote on account of race or color. The jurisdiction bears the burden of persuasion on both
points. Reno v. Bossier Parish Sch. Bd. (Bossier II), 528 U.S. 320, 328 (2000). A mere finding
of discriminatory effect or “retrogression” does not amount to a constitutional violation, which
requires an additional showing of discriminatory intent. And an objection based on
discriminatory purpose shows only that the State failed to carry its burden of proof in the
preclearance proceedings.9 Such an objection does not demonstrate that a state actually
engaged in any intentional discrimination in violation of the Fourteenth Amendment under the
traditional burden of proof. See Perez, 138 S. Ct. at 2330 n.25 (citations omitted) (“In
assessing the significance of the D.C. court’s evaluation of intent, it is important not to forget

In 2006, Congress amended § 5 to include “any discriminatory purpose.” The Supreme Court had
previously construed § 5 as extending only to retrogressive intent, and not discriminatory intent generally. Reno
v. Bossier Parish Sch. Bd. (Bossier II), 528 U.S. 320, 329 (2000); Beer v. United States, 425 U.S. 130 (1976).
9

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that the burden of proof in a preclearance proceeding was on the State. Particularly where race
and partisanship can so often be confused, . . . the burden of proof may be crucial.”).
6. the Court finds sufficient violations to potentially trigger bail-in.
The Court has found violations of the Fourteenth Amendment with regard to the 2011
plans, and concludes that these findings are sufficient to trigger bail-in as a potential remedy.
The Court now considers whether it will order such relief.
B. Whether the remedy of preclearance should be imposed.
The Jeffers court noted that the statute does not simply require “violations” of the
Fourteenth Amendment, but “violations justifying equitable relief.” Jeffers, 740 F. Supp. at
601. Moreover, a finding that violations have occurred does not automatically mean that bailin relief should be imposed; rather, whether it should be imposed is governed by traditional
principles of equitable discretion. Id. The Jeffers court listed six, non-exhaustive, relevant
factors for courts to consider in exercising their discretion, including: “Have the violations
been persistent and repeated? Are they recent or distant in time? Are they the kinds of
violations that would likely be prevented, in the future, by preclearance? Have they already
been remedied by judicial decree or otherwise? How likely are they to recur? Do political
developments, independent of this litigation, make recurrence more or less likely?” Id. These
factors remain relevant today and have been considered by the Court. But the Court must also
consider the Supreme Court’s and Fifth Circuit’s recent guidance on preclearance.
The Supreme Court first upheld the constitutionality of § 5 in South Carolina v.
Katzenbach, 383 U.S. 301 (1966). The Court noted that the VRA “create[d] stringent new
remedies for voting discrimination where it persists on a pervasive scale, and in addition the
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statute strengthens existing remedies for pockets of voting discrimination elsewhere in the
country.” Id. at 308. The legislative history revealed that “Congress felt itself confronted by an
insidious and pervasive evil which had been perpetuated in certain parts of our country
through unremitting and ingenious defiance of the Constitution,” and Congress concluded that
“sterner and more elaborate measures” were necessary to uphold voting rights because caseby-case litigation against voting discrimination had proved insufficient. Id. at 309.
In 2009, the Supreme Court questioned the ongoing constitutionality of § 5 and its
coverage formula after its reauthorization in 2006 in Northwest Austin Municipal Utility
District Number One v. Holder, 557 U.S. 193 (2009), but did not decide the issue. In that
opinion, the Court noted that the VRA had achieved historic accomplishments, but recognized
that § 5 imposes substantial federalism costs. Id. at 202-03.
In Shelby County v. Holder, the Supreme Court invalidated the coverage formula in § 4
of the VRA, but left § 5 and the § 3 remedies, including bail-in, intact. But in doing so, the
Court stressed that § 5’s requirement for “[s]tates to obtain federal permission before enacting
any law related to voting” was “a drastic departure from basic principles of federalism,” and
burdens imposed by the Act must be justified by current needs. Shelby County, 570 U.S. at
535, 542. “The Federal Government does not . . . have a general right to review and veto state
enactments before they go into effect.” Id. at 542.
Highlighting that “federalism secures to citizens the liberties that derive from the
diffusion of sovereign power” the Court emphasized that “the Framers of the Constitution
intended the States to keep for themselves . . . the power to regulate elections.” Id. at 543
(internal quotation marks and citations omitted). “Drawing lines for congressional districts is .
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. . ‘primarily the duty and responsibility of the State.’” Id. at 543. Because the imposition of
preclearance results in a system where “one State waits months or years and expends funds to
implement a validly enacted law,” while “its neighbor can typically put the same law into
effect immediately, through the normal legislative process,” and further applies substantive
standards quite different from those governing states not subject to preclearance, such “strong
medicine” can only be justified in exceptional circumstances. Id. at 544–45, 535. Importantly
for our purposes, although the Supreme Court did not invalidate § 5 in Shelby County, it noted
that arguments that the preclearance requirement was unconstitutional have “a good deal of
force,” given the improvements in minority voter turnout, registration, and office-holder rates,
the rarity of blatantly discriminatory evasions of federal decrees, and the fact that
discriminatory tests and devices had been banned for over 40 years. Id. at 547.
In the wake of Shelby County, courts have been hesitant to grant § 3(c) relief. For
example, in North Carolina State Conference of NAACP v. McCrory, 831 F.3d 204 (4th Cir.
2016), the Fourth Circuit declined the plaintiffs’ request for § 3(c) relief, despite concluding
that “that the North Carolina General Assembly enacted the challenged provisions of the
[election] law with discriminatory intent” targeting African Americans in numerous ways,10 in
violation of the Fourteenth Amendment. Id. at 215, 219. Without much analysis, the Court
explained that “[s]uch remedies are rarely used” and were “not necessary” in light of the
court’s injunction against North Carolina’s omnibus election reform law. Id. at 241. The Court
cited Conway School District v. Whilhoit, 854 F. Supp. 1430 (E.D. Ark. 1994), which noted

10

These included photo ID, early voting, same-day registration, out-of-precinct voting, and
preregistration.
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that “[t]he preclearance remedy is rarely used, only being utilized in such a ‘systematic and
deliberate’ case as Jeffers.” Id. at 1442.
Moreover, although this Court has concluded that Veasey does not automatically
preclude imposition of bail-in relief, Veasey also counsels strongly against its imposition here.
The Supreme Court overturned this Court’s findings of discriminatory intent with regard to the
2013 plans. Thus, as in Veasey, there are no findings of discriminatory intent or Fourteenth
Amendment violations concerning the plan currently in place. The Supreme Court also held
that the 2013 Legislature did not “use criteria that arguably carried forward the effects of any
discriminatory intent on the part of the 2011 Legislature,” and essentially found the current
plans to be free of constitutional infirmities. Abbott v. Perez, 138 S. Ct. 2305, 2325 (2018).
Although this Court may disagree about the lingering effects of discrimination from the 2011
plans, the clear import of the Supreme Court’s opinion is that nothing further remains to be
remedied, and this Court is bound to follow that opinion. In addition to considering whether
any infirmities remain, Veasey further instructs this Court to consider that the State acted
promptly to adopt the interim plans to remedy any potential violations.
Although the Court concluded above that it could and should also consider the
intentional discrimination findings made in the underlying voter ID litigation itself, it does
little to bolster the foundation for bail-in. While this was another recent act of intentional
discrimination by the State, as the Veasey court noted, it affected only a small portion of
minority voters (indigent minority voters), and there was no indication that its effects had not
been fully remedied. Thus, the Court finds an insufficient basis upon which to award the
requested bail-in relief.
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To be clear, however, the Court has grave concerns about Texas’s past conduct. During
the 2011 legislative session, Texas engaged in traditional means of vote dilution such as
cracking and packing in drawing districts, and also utilized newer methods of dilution and
suppression such as using the “nudge factor” and passing voter ID requirements.
The existence of high levels of racially polarized voting across Texas cannot be
disputed,11 nor is there any indication that the levels of racially polarized voting are
decreasing. This Court and others have recognized that “the presence of racially polarized
voting provides a strong incentive for intentional discrimination, commonly through vote
dilution….” Docket no. 1390 at 120 (quoting N.C. State Conf. of NAACP v. McCrory, 831
F.3d 204, 214, 222 (4th Cir. 2016)).
In addition to racially polarized voting, it is undisputed that minority population levels
are markedly increasing, and “restrictive and discriminatory voting laws have typically been
enacted (by both political parties) in response to a perception of increased voting power by
emerging demographic groups.” Docket no. 1390 at 141. Given the fact of changing
population demographics, the likelihood increases that the Texas Legislature will continue to
find ways to attempt to engage in “ingenious defiance of the Constitution”12 that necessitated
the preclearance system in the first place.13 At the hearing on § 3(c) relief, counsel for the

11

As this Court noted, Defendants did not dispute that people of different races vote differently from one
another, and that minorities tend to vote Democrat while Anglos generally tend to vote Republican. Docket no.
1390 at 120 n.104.
12

So. Carolina v. Katzenbach, 383 U.S. 301, 309 (1966).

13

For example, the State recently engaged in the dubious voter-purge, sending a list of approximately
95,000 registered voters to counties advising them to investigate their citizenship and eligibility to vote. Texas
LULAC v. Whitley, SA-19-CV-74. Out of 98,000 new American voters on the list, the Secretary of State almost
immediately recognized that 25,000 names should not have been included, and by February 27 only
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State was asked whether the State would commit to conduct future redistricting proceedings
by a fair and open process. Counsel responded that to answer the question, he needed to know
how those terms are defined before committing to a specific process. 14 That response is
disappointing.

Irrespective of whether an employee of the State’s executive branch is

empowered, in open court, to commit the Legislature to a particular process, we warn that,
given the record produced in 2011, the State must implement a process that, by any reasonable
definition, is “fair and open”.
Nevertheless, the Court concludes that ordering preclearance on the current record
would be inappropriate, given the recent guidance from the Supreme Court and the Fifth
Circuit. It is time for this round of litigation to close. Abbott, 138 S. Ct. at 2327 (“There is thus
no need for any further prolongation of this already protracted litigation.”).
Even without being subject to preclearance, Texas must still comply with the
requirements of the Fourteenth Amendment and § 2 of the VRA in the upcoming redistricting
approximately 80 had been identified as being ineligible to vote. This case was recently settled, and thus there are
no final determinations concerning whether this voter purge was motivated at least in part by purposeful racial
discrimination.
14
[JUDGE RODRIGUEZ]: Will the state of Texas stipulate that this next go-around after the census data is
released that you will have full, fair, transparent public hearings after the census data is released and that there
will be full, fair, transparent hearings held with maps visible for the public to see and actual hearings as opposed
to what took place in 2011 with votes held in public with ample notice. Will the state agree to all that?
MR. FREDERICK: I couldn't even begin to consider it until I knew exactly what full, fair, and open
meant. . . .
[JUDGE RODRIGUEZ]: No, no. And so what I mean by the process is what didn't take place the last
time around. We didn't have hearings. We had hearings before a census map was released -- census data was
released. So that was of no value to anybody. And then when hearings did take place, they were held in unusual
locations with last-minute notices on holidays. So, you know, that's the kind of behavior the state engaged in last
time, and I'm asking you to stipulate on behalf of the state, if you can so stipulate, that you won't do that again.
And if you can't, then why shouldn't I award 3(c)relief?
MR. FREDERICK: Two responses. I can't stipulate because I do not -- because the terms are not
defined. I don't know what I would be stipulating to. The reason that that can't support 3(c)relief is doing a bad
job in a complicated process is so far from the necessary level of deliberate constitutional defiance that is
necessary for preclearance that it just doesn't get close ….
Docket no. 1629 (May 10, 2019 hearing transcript).
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cycle, and undoubtedly its plans will be subject to judicial scrutiny. Texas would be well
advised to conduct its redistricting process openly, with the understanding that consideration
of bail-in is always an option for whatever federal court or courts may be tasked with review
of future legislative actions. On this record and under current law, however, bail-in is denied.
It is SO ORDERED.
SIGNED this 24th day of July, 2019 on behalf of the Three-Judge Panel.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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