SI- Perez v. Perry Section 5

You may view the statement of interest in pdf format.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

SHANNON PEREZ, et al., §

§ CIVIL ACTION NO.

Plaintiffs, § SA-11-CA-360-OLG-JES-XR

v. § [Lead case]

§

STATE OF TEXAS, et al., §

§

Defendants. §

____________________________________ §

§

MEXICAN AMERICAN LEGISLATIVE § CIVIL ACTION NO.

CAUCUS, TEXAS HOUSE OF § SA-11-CA-361-OLG-JES-XR

REPRESENTATIVES (MALC), § [Consolidated case]

§

Plaintiffs, §

v. §

§

STATE OF TEXAS, et al., §

§

Defendants. §

____________________________________ §

§

TEXAS LATINO REDISTRICTING TASK § CIVIL ACTION NO.

FORCE, et al., § SA-11-CA-490-OLG-JES-XR

§ [Consolidated case]

Plaintiffs, §

v. §

§

RICK PERRY, §

Defendant. §

§

____________________________________ §

§

MARAGARITA V. QUESADA, et al., § CIVIL ACTION NO.

§ SA-11-CA-592-OLG-JES-XR

Plaintiffs, § [Consolidated case]

v. §

§

RICK PERRY, et al., §

§

Defendants. §

____________________________________ §

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JOHN T. MORRIS, § CIVIL ACTION NO.

§ SA-11-CA-615-OLG-JES-XR

Plaintiff, § [Consolidated case]

§

v. §

§

STATE OF TEXAS, et al., §

§

Defendants. §

____________________________________ §

§

EDDIE RODRIGUEZ, et al., §

§ CIVIL ACTION NO.

Plaintiffs, § SA-11-CA-635-OLG-JES-XR

§ [Consolidated case]

v. §

§

RICK PERRY, et al., §

§

Defendants. §

____________________________________ §

STATEMENT OF INTEREST OF THE UNITED STATES WITH RESPECT TO THE REDRAWING OF INTERIM MAPS ON THE BASIS OF PROBABLE VIOLATIONS OF SECTION 5 OF THE VOTING RIGHTS ACT

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INTEREST OF THE UNITED STATES

The United States files this Statement of Interest pursuant to 28 U.S.C. § 517, which authorizes the Attorney General to attend to the interests of the United States in any pending suit.

The case presents important questions regarding the intersection of Sections 2 and 5 of the Voting Rights Act. Section 5 of the Voting Rights Act precludes covered jurisdictions from implementing voting changes without receiving "preclearance" for those changes. 42 U.S.C. § 1973c. The Attorney General has primary responsibility for enforcing and administering Section 5. See 42 U.S.C. §§ 1973c(a), 1973(d). The Attorney General also has broad authority to enforce Section 2. See 42 U.S.C. § 1973j(d). The United States thus has a strong interest in ensuring the statute is properly interpreted and applied.

The United States has a particular interest in the redistricting plans at issue in this case. It currently is defending the related judicial preclearance action filed by the State of Texas in the District Court for the District of Columbia. See Texas v. United States, No. 1:11-cv-1303 (D.D.C., filed July 19, 2011). The United States has argued in that action that the State’s proposed Congressional and State House plans fail to comply with Section 5. See United States’ Mem. Opp. Summ. J., Texas v. United States, No. 1:11-cv-1303 (D.D.C., filed Oct. 25, 2011), ECF No. 79-2 (hereinafter Texas v. United States, U.S. Opp. Mem.). The district court denied the State’s motion for summary judgment. See Order Denying Summary Judgment, Texas v. United States, No. 11-1303, 2011 WL 6440006 (D.D.C. Dec. 22, 2011). That case has proceeded to trial. Presentation of the evidence concluded on January 26, 2012. Closing arguments are scheduled for January 31, 2012, with all remaining filings due by February 6, 2012. The United States expects that the D.C. Court will decide the matter expeditiously.

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SUMMARY OF ARGUMENT

The United States submits this brief in response to the Court’s Order dated January 23, 2012, which raises a number of factual and legal questions in anticipation of the need for new interim plans. The United States does not seek to address all of the questions posed by this Court; rather, we address only this Court’s question regarding the allocation of burdens in determining whether the State’s plans stand a reasonable probability of failing to gain preclearance under Section 5 of the Voting Rights Act. Thus, this Statement of Interest addresses only the consideration this Court must give to the pending Section 5 objections being litigated in the D.C. Court when fashioning new interim plans.1

1 This Statement of Interest does not address the likelihood of success of Plaintiffs’ constitutional and Section 2 challenges to the proposed Congressional and State House plans. In fashioning any interim redistricting plan, however, this Court should rely on the evidence presented at trial in this case to determine whether Plaintiffs have demonstrated that they are likely to succeed on the merits.

In its per curiam opinion dated January 20, 2012, the Supreme Court stated that a district court fashioning an interim plan pending Section 5 preclearance should be guided by the State’s enacted plan, except to the extent that constitutional and Section 2 challenges to that plan are shown to have a likelihood of success on the merits. See Perry v. Perez, Nos. 11-713, 11-714, 11-715, slip op. at 5 (S. Ct. Jan. 20, 2012). With respect to outstanding Section 5 challenges, however, the Supreme Court reaffirmed that judicial determinations under Section 5 rest solely with the District Court for the District of Columbia. See id. at 6. As such, "[t]he calculus with respect to [Section] 5 challenges is somewhat different," as the district court fashioning an interim plan "should presume neither that a State’s effort to preclear its plan will succeed nor that it will fail." Id. Thus, while this Court must find that Plaintiffs are likely to succeed on their constitutional and Section 2 challenges before departing from the enacted plan on the basis of

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such challenges, the Court must refuse to take guidance from the State’s policy judgments to the extent they "reflect aspects of the state plan that stand a reasonable probability of failing to gain §5 preclearance." Id. The Court held that "[r]easonable probability" in this context means that the Section 5 challenge "is not insubstantial." Id.

Nothing in the Supreme Court’s decision shifted the allocation of burdens with respect to Section 5. Rather, the State retains its burden to secure preclearance and its burden of proving that each of its enacted plans "neither has the purpose nor will have the effect of denying or abridging the right to vote on account of" race, color or language minority status. 42 U.S.C. § 1973c(a). And here, where the District Court for the District of Columbia denied the State’s motion for summary judgment and proceeded to trial on the Section 5 challenges, the challenges to the State’s plans certainly are not insubstantial. Indeed, the D. C. Court’s denial of summary judgment more than establishes a reasonable probability that the State’s enacted plans will fail to gain preclearance.2 Thus, in fashioning its new interim redistricting plans, this Court should not incorporate the State’s policy judgments with respect to any aspects of the State’s enacted plans for which there are outstanding "not insubstantial" challenges under Section 5, in this case as more than aptly demonstrated through the objections lodged in the D.C. Court. In other words, in addition to any departures from the enacted plans that this Court makes upon determining that

2 While dispositive in this case, there need not be a denial of a motion for summary judgment in order to meet the "not insubstantial" standard. In fact, the evidence presented here goes well beyond the level required. For example, a decision by the Attorney General to interpose an objection to a proposed change would establish the requisite substantiality of a challenge. Similarly, as in this case, a decision by the United States to deny in its answer that a jurisdiction is entitled to judicial preclearance under Section 5 would demonstrate that a challenge is not insubstantial. The Court need not at this point define the bare minimum of evidence that would be necessary to establish that the ‘not insubstantial’ test is met; it suffices for purposes of this case to conclude that where the D.C. District Court has denied summary judgment in judicial preclearance proceedings, a court drawing interim maps may easily conclude that the Section 5 challenge is not insubstantial.

Case 5:11-cv-00360-OLG-JES-XR Document 591 Filed 01/27/12 Page 5 of 22 6 Plaintiffs are likely to succeed on their constitutional and Section 2 claims, this Court should adhere to the State’s policy judgments with respect to aspects of the plan challenged under Section 5 only to the extent that the parties in the D.C. case have lodged no credible claim under Section 5.

ARGUMENT

AS TO ASPECTS OF PLANS CHALLENGED UNDER SECTION 5 OF THE VOTING RIGHTS ACT, THIS COURT SHOULD REFUSE TO FOLLOW THE STATE’S POLICY JUDGMENTS BECAUSE THE DENIAL OF SUMMARY JUDGMENT IN THE JUDICIAL PRECLEARANCE ACTION ESTABLISHES A REASONABLE PROBABILITY THAT THE PLANS WILL FAIL TO GAIN PRECLEARANCE

Section 5 of the Voting Rights Act requires the State to show that each of its enacted plans "neither has the purpose nor will have the effect of denying or abridging the right to vote on account of" race, color or language minority status. 42 U.S.C. § 1973c(a). The "effect" prong precludes preclearance of voting changes that "would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise," as measured against the jurisdiction’s existing practice. Beer v. United States, 425 U.S. 130, 141 (1976); see Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 478 (1997). The retrogression prong thus prohibits changes from the existing, or benchmark, plan that will, because of race, color, or membership in a language minority group, "diminish[] the ability . . . to elect their preferred candidates of choice." 42 U.S.C. § 1973c(b). The "purpose" prong precludes preclearance of voting changes motivated by "any discriminatory purpose." 42 U.S.C. § 1973c(c). Until a newly enacted plan gains preclearance under Section 5, the State may not use that plan to conduct an election. 42 U.S.C. § 1973c(a); see Perry v. Perez, Nos. 11-713, 11-714, 11-715, slip op. at 2 (S. Ct. Jan. 20, 2012).

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To the extent that a district court must draft interim redistricting plans pending a preclearance determination, however, the Supreme Court recently has instructed that the district court should take guidance from the policy judgments reflected in a State’s enacted plan to the extent those policies do not lead to violations of the Constitution or the Voting Rights Act. See Perry v. Perez, slip op. at 4-5. Thus, while an enacted plan will serve as the starting point for a district court drawing an interim plan, the court cannot incorporate challenged districts into its plan where a plaintiff has demonstrated a likelihood of success on the merits of its constitutional or Section 2 challenges to those districts. See id. at 5-6. Nor can the district court follow the State’s policy judgments where aspects of the State’s enacted plan "stand a reasonable probability of failing to gain [Section] 5 preclearance." Id. at 6. Because judicial preclearance under Section 5 in this case rests solely with the District Court for the District of Columbia, a local district court determining whether a Section 5 challenge "is not insubstantial" should take guidance, to the extent possible, from pleadings, evidence, developments, or decisions in the judicial preclearance action. Ibid. The court also may be guided by the Attorney General’s assessment of the plan at issue.

Here, the District Court for the District of Columbia denied summary judgment in the judicial preclearance action, thus establishing definitely that the Section 5 challenges to the enacted plans are not insubstantial. See Order Denying Summary Judgment. Out of respect to the court with jurisdiction over the Section 5 challenges, this Court should take guidance from that court’s summary judgment decision and the parties’ submissions in the judicial preclearance action when determining whether to depart from the State’s policy judgments in crafting any new interim plans. Cf. Perry v. Perez, slip. op. at 6, 10. The Supreme Court has instructed this Court not to displace the policy judgments of the State in order to achieve de minimus population

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deviations or minimal precinct splits in districts where there are no pending legal challenges. See id. at 8-9. In the case of pending Section 5 challenges, however, this Court must deviate from the State’s enacted plans where there is a not insubstantial possibility that failing to do so would diminish the number of minority ability-to-elect districts as compared to the benchmark plan or would sanction aspects of the enacted plans that may have been adopted with a discriminatory purpose. Before refusing to adhere to the State’s policy judgments because of possible Section 5 violations, however, this Court must find that departures from the State plan are justified, because the relevant aspects of the enacted plans face a not insubstantial challenge under the statute. See id. at 6, 9-10.

As to retrogression, for example, the District Court for the District of Columbia determined that the State used an improper standard and/or methodology to determine the number of minority ability-to-elect districts under the benchmark plan as compared to the proposed plan. See Texas v. United States, Order Denying Summary Judgment at 24-34 (explaining why the State’s methodology was inadequate and explaining factors to be considered in determining ability-to-elect status). Because the State House plan reduces the number of minority ability-to-elect districts from 50 benchmark districts to 45 districts under the proposed plan, there is a reasonable probability that the plan will fail to gain preclearance. See Texas v. United States, U.S. Opp. Mem. at 8 (House Districts 33, 35, 41, 117, and 149 lost ability-to-elect status under the enacted plan).

This Court thus would be justified in ensuring that any interim State House plan has at least 50 minority ability-to-elect districts in order to comply with Section 5. Cf. Texas v. United States, U.S. Opp. Mem. at 7-8. These districts could include any coalition districts in which minority groups currently have the ability to elect their preferred candidate. See Texas v. United

Case 5:11-cv-00360-OLG-JES-XR Document 591 Filed 01/27/12 Page 8 of 22 9 With respect to the Congressional plan, this Court’s interim plan would have to include at least 11 minority ability-to-elect districts in order to avoid impermissible retrogressive effect under Section 5. See Texas v. United States, U.S. Opening Trial Brief at 4 (setting forth 10 benchmark districts and noting lost ability-to-elect status in Congressional Districts 23 and 27). Case 5:11-cv-00360-OLG-JES-XR Document 591 Filed 01/27/12 Page 9 of 22 10

This Court likewise should not follow the State’s policy judgments with respect to certain districts in the Congressional and State House plans on the basis of evidence that the State intentionally replaced politically active Hispanic voters previously in those districts with less mobilized Hispanic voters. See Texas v. United States, U.S. Opp. Mem. at 12-13, 32 (House District 117 as an example of such action); id. at 24-25, 37-38 (Congressional District 23 as an example of such action). The loss of minority ability-to-elect districts under the State House plan (Districts 33, 35, 41, 117, and 149) also suggests that the State acted with a discriminatory purpose in enacting its plans. See id. at 30. This Court likewise should decline to incorporate the State’s race-based actions with respect to districts or counties in which the State cracked large Hispanic populations, or pulled strangely shaped minority populations out of certain districts, in order to submerge minority voters in larger Anglo populations, thereby reducing minority voting strength. The Supreme Court noted that those districts "appear to be subject to strong challenges" under Section 5. Cf. Perry v. Perez, slip op. at 10 (citing U.S. Opp. Mem. at 38). See also Texas v. United States, U.S. Opp. Mem. at 31-32 (in the House plan, for example, evidence of cracking in the Dallas-Fort Worth area and use of precinct-level racial data in proposed District 41); id. at 38 (in the Congressional plan, evidence of discriminatory purpose in the enacted Dallas-Fort Worth districts).

Where this Court departs from the State’s enacted plans on the basis of impermissible retrogression under the proposed State House and Congressional plans or evidence of discriminatory intent in the creation of State House and Congressional districts, it must justify that action by identifying with specificity the relevant aspects of those plans that face a not insubstantial challenge under Section 5. In doing so, it may rely on the State’s failure in the District Court for the District of Columbia to thus far meet its burden of showing that each of its

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enacted plans "neither has the purpose nor will have the effect of denying or abridging the right to vote on account of" race, color, or membership in a language minority group. 42 U.S.C. § 1973c(a).

CONCLUSION

In fashioning new interim plans pending judicial preclearance under Section 5 of the Voting Rights Act, this Court should deviate from the policy judgments reflected in the State’s enacted plans where those judgments reflect aspects of plans that are subject to a "not insubstantial" Section 5 challenge. In this context, this Court easily may conclude based on the record of the proceedings before the District Court for the District of Columbia – including the pleadings, Order Denying Summary Judgment, and evidence presented at trial –that the State’s enacted maps are subject to Section 5 challenges that are not insubstantial.

Date: January 27, 2012

Respectfully submitted,

ROBERT PITMAN THOMAS E. PEREZ

United States Attorney Assistant Attorney General

Western District of Texas Civil Rights Division

/s/ Jaye Allison Sitton

T. CHRISTIAN HERREN, JR.

TIMOTHY F. MELLETT

JAYE ALLISON SITTON

(DC Bar 453655)

ERIN FLYNN

Attorneys

Civil Rights Division

U.S. Department of Justice

950 Pennsylvania Avenue, N.W.

Washington, D.C. 20530

Telephone: (202) 305-4143

Facsimile: (202) 307-3961

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this filing was sent via the Court’s electronic

notification system and/or email to the following counsel of record on January 27, 2012 to:

Via CM/ECF

DAVID RICHARDS

Texas Bar No. 1684600

Richards, Rodriguez & Skeith LLP

816 Congress Avenue, Suite 1200

Austin, TX 78701

512-476-0005

davidr@rrsfirm.com

RICHARD E. GRAY, III

State Bar No. 08328300

Gray & Becker, P.C.

900 West Avenue, Suite 300

Austin, TX 78701

512-482-0061/512-482-0924 (facsimile)

Rick.gray@graybecker.com

JOSE GARZA

Texas Bar No. 07731950

Law Office of Jose Garza

7414 Robin Rest Dr.

San Antonio, Texas 78209

210-392-2856

garzpalm@aol.com

MARK W. KIEHNE

mkiehne@lawdcm.com

RICARDO G. CEDILLO

rcedillo@lawdcm.com

Davis, Cedillo & Mendoza

McCombs Plaza

755 Mulberry Ave., Ste. 500

San Antonio, TX 78212

210-822-6666/210-822-1151 (facsimile)

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GERALD H. GOLDSTEIN

State Bar No. 08101000

ggandh@aol.com

DONALD H. FLANARY, III

State Bar No. 24045877

donflanary@hotmail.com

Goldstein, Goldstein and Hilley

310 S. St. Mary’s Street

29th Floor, Tower Life Bldg.

San Antonio, TX 78205-4605

210-226-1463

210-226-8367 (facsimile)

PAUL M. SMITH

MICHAEL B. DESANCTIS

JESSICA RING AMUNSON

Jenner & Block LLP

1099 New York Ave., NW

Washington, D.C. 20001

202-639-6000

J. GERALD HEBERT

191 Somervelle Street, # 405

Alexandria, VA 22304

703-628-4673

hebert@voterlaw.com

JESSE GAINES

P.O. Box 50093

Fort Worth, TX 76105

817-714-9988

NINA PERALES

Texas Bar No. 24005046

nperales@maldef.org

MARISA BONO

mbono@maldef.org

REBECCA MCNEILL COUTO

rcouto@maldef.org

Mexican American Legal Defense

and Education Fund

110 Broadway, Suite 300

San Antonio, TX 78205

210-224-5476/(210) 224-5382 (facsimile)

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MARK ANTHONY SANCHEZ

masanchez@gws-law.com

ROBERT W. WILSON

rwwilson@gws-law.com

Gale, Wilson & Sanchez, PLLC

115 East Travis Street, Ste. 1900

San Antonio, TX 78205

210-222-8899/210-222-9526 (facsimile)

JOHN T. MORRIS

5703 Caldicote St.

Humble, TX 77346

281-852-6388

MAX RENEA HICKS

Law Office of Max Renea Hicks

101 West Sixth Street Suite 504

Austin, TX 78701

512-480-8231/512-480-9105 (facsimile)

rhicks@renea-hicks.com

LUIS ROBERTO VERA, JR.

Law Offices of Luis Roberto Vera, Jr. &

Associates

1325 Riverview Towers

111 Soledad

San Antonio, Texas 78205-2260

210-225-3300

lrvlaw@sbcglobal.net

GEORGE JOSEPH KORBEL

Texas Rio Grande Legal Aid, Inc.

1111 North Main

San Antonio, TX 78213

210-212-3600

korbellaw@hotmail.com

ROLANDO L. RIOS

Law Offices of Rolando L. Rios

115 E Travis Street

Suite 1645

San Antonio, TX 78205

210-222-2102

rrios@rolandorioslaw.com

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GARY L. BLEDSOE

State Bar No.: 02476500

Law office of Gary L. Bledsoe

316 W. 12th Street, Ste. 307

Austin, TX 78701

512-322-9992/512-322-0840 (facsimile)

garybledsoe@sbcglobal.net

STEPHEN E. MCCONNICO

smcconnico@scottdoug.com

SAM JOHNSON

sjohnson@scottdoug.com

S. ABRAHAM KUCZAJ, III

akuczaj@scottdoug.com

Scott, Douglass & McConnico

One American Center

600 Congress Ave., 15th Floor

Austin, TX 78701

512-495-6300/512-474-0731 (facsimile)

CHAD W. DUNN

chad@brazilanddunn.com

K. SCOTT BRAZIL

scott@brazilanddunn.com

Brazil & Dunn

4201 FM 1960 West, Suite 530

Houston, TX 77068

281-580-6310/281-580-6362 (facsimile)

VICTOR L. GOODE

Asst. Gen. Counsel, NAACP

4805 Mt. Hope Drive

Baltimore, MD 21215-5120

410-580-5120/410-358-9359 (facsimile)

vgoode@naacpnet.org

ROBERT NOTZON

State Bar No. 00797934

Law Office of Robert S. Notzon

1507 Nueces Street

Austin, TX 78701

512-474-7563/512-474-9489 (facsimile)

robert@notzonlaw.com

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ALLISON JEAN RIGGS

ANITA SUE EARLS

Southern Coalition for Social Justice

1415 West Highway 54, Ste. 101

Durham, NC 27707

919-323-3380/919-323-3942 (facsimile)

anita@southerncoalition.org

DONNA GARCIA DAVIDSON

PO Box 12131

Austin, TX 78711

(512) 775-7625/(877) 200-6001 (facsimile)

donna@dgdlawfirm.com

FRANK M. REILLY

Potts & Reilly, L.L.P.

P.O. Box 4037

Horseshoe Bay, TX 78657

512-469-7474/512-469-7480 (facsimile)

reilly@pottsreilly.com

DAVID SCHENCK

david.schenck@oag.state.tx.us

MATTHEW FREDERICK

matthew.frederick@oag.state.tx.us

ANGELA V. COLMENERO

angela.colmenero@oag.state.tx.us;

ANA M. JORDAN

ana.jordan@oag.state.tx.us;

DAVID MATTAX

david.mattax@oag.state.tx.us; PO Box 12548, Capitol Station

Austin TX 78711-2548

(512) 936-1342

JOHN K. TANNER

John Tanner Law Office

3743 Military Rd. NW

Washington, DC 20015

Phone: (202)503-7696

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NED BENNET SANDLIN

Executive Director

Texas Municipal League

1821 Rutherford Lane

Suite 400

Austin, TX 78754-5128

Phone: (512)231-7400

Fax: (512)231-7490 Email: bennett@tml.org