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Perez v. Abbott

United States District Court, W.D. Texas, San Antonio Division

July 24, 2019

SHANNON PEREZ, ET AL., Plaintiffs,
GREG ABBOTT, ET AL., Defendants.

          Before Chief District Judge GARCIA, Circuit Judge SMITH, and District Judge RODRIGUEZ



         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 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]

         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).

         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 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 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 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 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 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.

         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 plans[4] 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. ...

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