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June 25, 2018

Supreme Court Decides Abbott et al. v. Perez et al.

On June 25, 2018, the Supreme Court decided Abbott, et al. v. Perez, et al., Nos. 17-586 & 17-626. The Court held that the district court erred when it required the State to show that the 2013 Texas Legislature had "purged the taint" the district court attributed to the 2011 plans, which were the starting points for what ultimately became the 2013 plans. The district court “disregarded the presumption of legislative good faith and improperly reversed the burden of proof.” The Court reversed, save for one challenged district that was an impermissible racial gerrymander.

The plans at issue in the case have a long history in litigation. Following the 2010 decennial census, the Texas Legislature adopted new redistricting maps for the two state houses and for the U.S. House of Representatives. These plans were immediately challenged under the Fourteenth Amendment and the Voting Rights Act (VRA), with several plaintiff groups arguing that some of the districts were racial gerrymanders, some were based on intentional vote dilution, and some had the effect of depriving minorities of the equal opportunity to elect the candidates of their choice. At the time, Texas was also required to obtain preclearance under the VRA, and Texas initiated a suit in the District Court of the District of Columbia for this purpose. By early 2012, the D.C. court had not issued a ruling, but elections were rapidly approaching; the Texas court drew interim plans. It did so without giving any deference to the 2011 plans drawn by the Legislature.

Texas challenged those court-drawn interim plans, and the Supreme Court reversed, holding that the district court should have “respected the legislative judgments embodied in the 2011 plans to the extent allowed by the Constitution and the VRA.” The Court’s remand order specifically instructed the three-judge panel to start with the plans as adopted by the Legislature but to modify them so as not to incorporate any legal defects. On remand, the district court issued two opinions with “preliminary” determinations, concluding that several districts required change. The court drew plans for all three legislative bodies at issue.

In 2013, the Legislature repealed the 2011 plans and enacted the district court’s interim plans, making changes only to the Texas House plan. The pending litigation was amended to challenge the 2013 plans as well. The district court ultimately held that several of the 2011 plan districts were unlawful. In reaching this conclusion the court went against what it had determined in its “preliminary” assessment by concluding that several additional districts violated the VRA.

With respect to the 2013 plans, which had been developed by the court and then adopted by the Legislature, the district court invalidated the districts that corresponded to the districts it had just held unlawful under the 2011 plan. The court based that conclusion on the discriminatory intent “allegedly harbored by the 2011 Legislature, and it attributed this same intent to the 2013 Legislature because it had failed to ‘engage in a deliberative process to ensure that the 2013 plans cured any taint from the 2011 plans.’”

For several of the districts, the district court’s opinion rested solely on its finding that the 2013 Legislature “had not purged its predecessor’s discriminatory intent.” The court also held that three districts were invalid under §2 of the VRA and found independent proof that one district, HD90, was a racial gerrymander. The district court ordered that the violations in all of these districts “must be remedied,” first giving the Legislature the opportunity to cure the violations. The State did not act, and the district court ordered a hearing with respect to remedial plans. These orders were appealed to the Supreme Court.

The Court’s first holding addressed its jurisdiction to hear the case. 28 U.S.C. §1253 authorizes the Court to hear an appeal of an order from a three-judge court “granting or denying … an interlocutory or permanent injunction.” The issue before the Court was whether the orders, which did not refer to the relief as an “injunction” and expressly disclaimed the term, nevertheless met that requirement. The Court, extending the “practical effects” rule from §1292(a)(1) to apply to §1253 as well, held that if an order has the “practical effect” of granting or denying an injunction then it should be treated that way for purposes of appellate jurisdiction. Applying the rule, the Court concluded that the text of the order and context made clear that the district court intended to have new plans ready for use in this year’s election, thus qualifying the orders as interlocutory injunctions.

The Court’s second, and primary, holding addressed whether the district court applied the correct legal standard. The Court held that it did not. The intent of the 2013 Legislature, not the 2011 Legislature, is what matters. “Instead of holding the plaintiffs to their burden of overcoming the presumption of good faith and proving discriminatory intent, it reversed the burden of proof.” The Court went on to say that the intent of the 2011 Legislature is not irrelevant and the 2013 plans are not unassailable simply because they were adopted on an interim basis by the court. But these factors must be “weighed together with any other direct and circumstantial evidence of [the] Legislature’s intent.” The only direct evidence suggested that the 2013 Legislature’s intent, which was to end the litigation, was legitimate. And the circumstantial evidence pointed to the same conclusion. Accordingly, the Court reversed the district court’s finding with respect to intent.

The final portion of the Court’s opinion addressed the four remaining districts that the district court invalidated on alternative grounds.

The Court reversed with respect to the three districts invalidated under the “effects” test of §2 of the VRA. To make out such a claim, a plaintiff must establish the three Gingles factors: (1) a geographically compact minority population sufficient to constitute a majority in a single-member district, (2) political cohesion among the members of the minority group, and (3) bloc voting by the majority to defeat the minority’s preferred candidate. A plaintiff who makes this showing must then go on to prove under the totality of the circumstances that the district lines dilute the votes of the members of the minority group. The Court found that the plaintiffs could not meet this burden with respect to CD27 because they could not show that an additional Latino opportunity district could be created in the relevant part of Texas. Similarly, the district court also erred with respect to HD32 and HD34 because given the court’s findings, it was not possible to create two performing districts in the relevant geography.

Finally, with respect to HD90, the Court affirmed. This district was not copied from the district court’s interim plan, but instead was “substantially modified” by the 2013 Legislature. Texas did not dispute that race was the predominant factor, but argued that it was necessary to satisfy the VRA. The evidence, however, was “simply too thin a reed to support the drastic decision to draw lines in this way.” It is the State’s burden to prove narrow tailoring and it did not do so here. HD90 is an impermissible racial gerrymander. The Court remanded for consideration of an appropriate remedy.

Justice Alito delivered the opinion of the Court, joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Gorsuch. Justice Thomas filed a concurring opinion, joined by Justice Gorsuch. Justice Sotomayor filed a dissenting opinion, joined by Justices Ginsburg, Breyer, and Kagan.

Download Opinion of the Court.

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