Perez et al v. Perry et al
ORDER DENYING 529 Opposed MOTION to Stay Implementation of Interim House Redistricting Plan filed by Hope Andrade, State of Texas, Rick Perry.Signed by Judge Orlando L. Garcia, Circuit Judge Jerry E. Smith, Judge Xavier Rodriguez. (mo,)
In the United States District Court
Western District of Texas
SHANNON PEREZ, ET AL.
RICK PERRY, ET AL.
Defendants' motion to stay implementation of the court-drawn interim
house redistricting plan pending appeal (Dkt. No. 529) is DENIED for the
reasons given in this Court's Order dated November 23, 2011. As stated in that
Order, when there is no other legally enforceable plan in effect, this Court is
required to craft an independent court-drawn interim map. The State has
misinterpreted the applicable case since the inception of the interim court plan
The State insists that the Court must simply adopt its enacted
unprecleared plan, making only minimal changes, if any, to "remedy" any
constitutional or statutory violations. The State continues to rely on Upham v.
Seamon, 456 U.S. 37, 102 S.Ct. 1518 (1982), which is clearly inapposite to the
situation that the Court faces herein. In Upham, the district court was faced
with drawing a remedial plan after preclearance of the State's enacted plan had
been denied. In the remedial phase, under Upham, the district court's task
would be limited to remedying the portions of the map known to be retrogressive
or otherwise violating the Voting Rights Act or the U.S. Constitution. Had the
State chosen the path of administrative preclearance through the Department
of Justice, we would perhaps be in the remedial phase right now. However, the
State chose to file a lawsuit in the United States District Court in the District
of Columbia, which is still pending, and we are not in the remedial phase.
Instead, we are in an interim phase where the Court has been placed in the
position of crafting an independent court drawn plan that complies with the U.S.
Constitution and Sections 2 and 5 of the Voting Rights Act. In doing so, the
Court is precluded from simply adopting the State's enacted plan or deferring to
the challenged plan, as doing so would make the preclearance process meaningless and constitute a de facto ruling on the merits of the various legal challenges
to the State's plan. See Lopez v. Monterey County, 519 U.S. 9, 117 S.Ct. 340
(1996)(district court erred when it failed to independently craft an electoral plan
and instead adopted the County's proposal, which required preclearance); see
also McDaniel v. Sanchez, 452 U.S. 130, 101 S.Ct. 2224 (1981)(district court
erred in adopting the County's plan, which required preclearance).
undisputed that the "failure to obtain either judicial or administrative
preclearance renders the [voting] change unenforceable," Clark v. Roemer, 500
U.S. 653, 111 S.Ct. 2096, 2101 (1991), and the Court cannot simply adopt an
unprecleared redistricting plan, in whole or in part, with the signatures of a few
judges sitting in Texas.
Further, the Court's order is not akin to a preliminary injunction as the
State suggests. The only request for injunctive relief that has been raised in this
lawsuit is the plaintiffs' request that the State's enacted plan be enjoined from
implementation because it has not been precleared. See Clark, 111 S.Ct. at 2101
(if there has been no preclearance, plaintiffs are entitled to an injunction
prohibiting the State from implementing the changes). However, since the
inception of this lawsuit, the State has admitted that its enacted plan must be
precleared prior to implementation. Yet it has persisted in trying to avoid
preclearance altogether by demanding that its unprecleared plan be adopted by
the Court as an interim court drawn plan. Again, the dictates of the U.S.
Supreme Court preclude this Court from doing so.
The dissent has somewhat embraced the State's arguments, and also relies
on Upham, even though this Court has not arrived at the remedial stage of these
Likewise, the dissent tries to distinguish Lopez based on the
procedural posture of the preclearance proceedings in this matter. However,
there was no preclearance in Lopez and there is no preclearance in this case. At
the end of the day, no preclearance means no preclearance, and no enforceable
The dissent also fails to appreciate that the Court has drawn an
independent redistricting plan without ruling on any of the various legal
challenges, and it has considered the parties' legal challenges only for the
purpose of avoiding the same legal challenges to the court drawn map. See
Conner v. Waller, 421 U.S. 657, 95 S.Ct. 2003 (1975)(the district court cannot
decide the constitutional challenges to the challenged, unprecleared plan). The
Court’s House plan clearly rises above the myriad of challenges to the State's
enacted plan and allows a free and fair election in 2012.
In conclusion, the State claims that it will be irreparably injured if a stay
is not granted. However, the individuals who would suffer irreparable injury if
the stay were granted are the citizens of Texas, by being deprived of the
opportunity to vote in the upcoming election under the schedule currently in
SIGNED this 25th day of November, 2011.
ORLANDO L. GARCIA
UNITED STATES DISTRICT JUDGE
UNITED STATES DISTRICT JUDGE
JERRY E. SMITH, Circuit Judge, dissenting:
Because a stay of the orders implementing interim plans for the 2012
elections is needed to allow orderly review and clarification of critical legal
issues, and because a stay will not harm any party, I respectfully dissent from
the denial of a stay. In its order announcing an interim redistricting plan for the
Texas House of Representatives, the majority acknowledged that “these are
difficult issues and reasonable minds can disagree.” It is therefore puzzling that
the majority is unwilling to stay its order so that those difficult issues can be
addressed on appeal before the announced interim plans are implemented.
There are myriad issues to be decided regarding interim, court-ordered
redistricting plans. Because these matters are usually raised only in the wake
of the decennial census, the caselaw is somewhat sparse and often murky.
Questions that are not addressed now, before any part of these interim plans are
implemented, might not be answered for yet another ten years or more. That is
why the more orderly course is for this court to stay its proceedings, before filing
for office begins in Texas on November 28, so that the Supreme Court will have
sufficient time to address the complex legal issues that apply to interim plans.
Here are the issues most begging for resolution or explication:
In fashioning a temporary interim redistricting plan, how much
deference should a court give to state-enacted legislative plans where a
determination for preclearance has been submitted but is pending in:
(1) districts that have not been specifically challenged; (2) districts that have
been challenged under novel legal theories; (3) districts that have been
challenged but as to which the challenges are unlikely to succeed on the merits;
and (4) districts that have been challenged where the claims have a likelihood
of success on the merits? In Upham v. Seamon, 456 U.S. 37 (1982), the Court
directed lower courts to modify a state’s legislative plans only where absolutely
required by law in a situation in which a determination on preclearance had
been made and two of the districts in the State’s plan had failed preclearance.
See also White v. Weiser, 412 U.S. 783, 794-95 (1973). In contrast, the Court in
Lopez v. Monterey County, 519 U.S. 9 (1996), rejected a lower court’s wholesale
implementation of a county’s plan as an interim plan where the county had
failed even to submit the plan for preclearance, defying a court order and despite
being on notice for five years.
The instant case falls somewhere in between the situations in Seamon and
Lopez: The State of Texas here has not attempted to frustrate or obviate the
preclearance process but instead has timely submitted its maps to the D.C.
District Court (unlike the county in Lopez), but the D.C. court has not yet ruled
on preclearance (unlike the Department of Justice in Seamon, which had ruled
on preclearance). Although the majority, as to the Texas House of
Representatives, contends that the many challenges to the State’s plan makes
it “impossible to give substantial deference to the State’s plan,” the very
existence of my proffered alternative plan, H299, shows that it is possible to give
more deference than the majority did while still taking the plaintiffs’ challenges
seriously. It would be of greater assistance for the Supreme Court to provide
guidance on this issue.
2. In a court-ordered interim plan, how much population deviation is
permissible in districts unchallenged by the plaintiffs or districts without
meaningful one-person one-vote issues? The majority, relying on Connor v.
Finch, 431 U.S. 407, 414 (1977), modified the State’s enacted districts to bring
them into de minimis deviation, even in districts unchallenged by the plaintiffs.
In contrast, my map left the unchallenged districts, which had population
deviations within the legally permissible range for legislatures (but were not de
minimis), intact, in accordance with the guidance given in Seamon, which held
that the stricter Connor standard cannot be the sole basis for modifying a state’s
redistricting, but instead is applicable only where a specific violation was found
and a remedial district was being drawn. Seamon, 465 U.S. at 43.
3. For purposes of section 2 and section 5 of the Voting Rights Act, is
election “performance” relevant or, or instead is the relevant measure the
percentage of citizen voting age population? The majority redrew Districts 77
(in El Paso County) and 117 (in Bexar County) because, under, the State’s plan,
the district does not “perform” often enough (i.e., it was likely to elect a
Republican) despite Hispanics’ comprising an overwhelming majority of the
citizen voting age population in those districts (73% and 63%, respectively). In
contrast, I read the section 2 caselaw to say that performance is not a relevant
measure, Johnson v. De Grandy, 512 U.S. 997, 1014 n.11 (1994), but rather the
relevant measure is the majority-minority requirement, Barlett v. Strickland,
556 U.S. 1, __, 129 S. Ct. 1231, 1244-45 (2009).
I have not found, nor has the majority cited, any caselaw to the contrary.
That said, there is little to no guidance about whether a court should consider
performance in a section 5 retrogression or discriminatory intent analysis, so it
would be helpful for the Supreme Court to provide clarity on this question.
4. May a court order the creation of minority “coalition” districts in an
interim plan, and, if so, under what circumstances?
Though the Court in
Bartlett rejected the contention that “cross-over” districts are covered by
section 2, some of its language calls into question whether “coalition” districts
are similarly covered (although the Court did expressly reserve the question).
The majority created such coalition districts in Dallas County (HD 107), Fort
Bend County (HD 26), and Bell County (HD 54). Districts 26 and 54 relied on
Asian votes to form a “coalition,” despite the lack of evidence showing cohesion
between Asians and Blacks or Hispanics in voting.
Though the majority contends these new coalition districts arose
“naturally” from a restoration to the status quo, it is hard to see how that could
be the case: For example, HD 107 was substantially reconfigured from the
status quo (composed of less than 40% of HD 107 in the benchmark plan) to
exclude Anglo voters and include minority voters, reducing the Anglo citizen
proportion by 33%. Similarly, Districts 26 and 54 were altered from the status
quo by removing almost exclusively white populations instead of reducing the
population in a race-neutral manner. Although my proposed alternate plan
creates a new coalition district in Tarrant County, it is the identical new district
created by the State (and dismantled by the majority), and the State has
unquestionable latitude to create such districts so long as it does not subordinate
traditional redistricting principles to race.
The lack of clarity regarding coalition districts is evidenced by a circuit
split on whether they may ever be required. The Fifth Circuit has treated the
question as one of fact, holding that it is not clearly erroneous for a district court
to find the first Gingles requirement satisfied by aggregating minority groups
to reach the 50% threshold. See Campos v. City of Baytown, Tex., 840 F.2d 1240
(5th Cir. 1988). The Sixth Circuit, however, has held that the text of the VRA
does not allow its application to coalitions of minority groups. See Nixon v. Kent
Cnty., 76 F.3d 1381 (6th Cir. 1996). This issue cries out for clarification.
In its motion for stay, the State concedes that it may become necessary to
delay the primary elections pending appellate review of issues regarding the
interim plans. Indeed, Texas has some of the earliest primariesSSperhaps the
very earliestSSin the United States. A delay of even a few weeks would still
provide ample time for orderly primaries and runoffs well in advance of the
But long before any such adjustment might become
necessary, the first step should be for entry of a stay of this court’s orders
imposing interim redistricting plans for the Texas House of Representatives and
the Texas Senate and, once this court imposes an interim Congressional plan,
a stay of that order as well. Likewise, a temporary stay should be entered of
candidate filing and qualifications deadlines for all elective offices so that filing
does not begin on November 28.
The majority’s refusal to enter a stay under these compelling
circumstances is error. I therefore respectfully dissent.
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