Case 5:11-cv OLG-JES-XR Document 179 Filed 08/10/11 Page 1 of 13

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1 Case 5:11-cv OLG-JES-XR Document 179 Filed 08/10/11 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION SHANNON PEREZ, et al., Plaintiffs, v. STATE OF TEXAS, et al., Defendants. CIVIL ACTION NO. 11-CA-360-OLG-JES-XR [Lead case] MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES, Plaintiffs, v. STATE OF TEXAS, et al., Defendants. CIVIL ACTION NO. SA-11-CA-361-OLG-JES-XR [Consolidated case] TEXAS LATINO REDISTRICTING TASK FORCE, et al., Plaintiffs, v. RICK PERRY, Defendant. CIVIL ACTION NO. SA-11-CA-490-OLG-JES-XR [Consolidated case] MARGARITA V. QUESADA, et al., Plaintiffs, v. RICK PERRY, et al., Defendants. CIVIL ACTION NO. SA-11-CA-592-OLG-JES-XR [Consolidated case] JOHN T. MORRIS, Plaintiff, v. STATE OF TEXAS, et al., Defendants. CIVIL ACTION NO. SA-11-CA-615-OLG-JES-XR [Consolidated case]

2 Case 5:11-cv OLG-JES-XR Document 179 Filed 08/10/11 Page 2 of 13 EDDIE RODRIGUEZ, et al., Plaintiffs, v. RICK PERRY, et al., Defendants. CIVIL ACTION NO. SA-11-CA-635-OLG-JES-XR [Consolidated case] RESPONSE IN OPPOSITION TO MOTION TO STAY CASE BY DEFENDANTS RICK PERRY, DAVID DEWHURST, JOE STRAUS, HOPE ANDRADE, AND THE STATE OF TEXAS Defendants Rick Perry, in his official capacity as Governor, David Dewhurst, in his official capacity as Lieutenant Governor, Joe Straus, in his official capacity as Speaker of the Texas House of Representatives, Hope Andrade, in her official capacity as Texas Secretary of State, and the State of Texas (collectively, Defendants or the State Defendants, oppose the Motion to Stay Case filed by the Quesada Plaintiffs. In support of their opposition, and pursuant to this Court s Order of August 8, 2011, Defendants file this Response in Opposition to the Motion to Stay Case, and in support thereof respectfully show the Court the following: I. This Court Has Jurisdiction to Consider Plaintiffs Claims While Preclearance Proceedings Are Underway. Does this Court have jurisdiction to hear this case while the D.D.C. Court case is underway, i.e., is this case ripe? Although other considerations may require this Court to reserve judgment until after preclearance is granted by the D.C. District Court, this Court has subject matter jurisdiction over Plaintiffs claims. The same question of ripeness has arisen in previous Texas redistricting cases. For example, in Terrazas v. Clements, 537 F. Supp. 514 (N.D. Tex. 1982, the three-judge court rejected the argument that challenges to the State s redistricting plans were not ripe until after the plans were precleared. The court recognized that while it was unable, until preclearance by the 2

3 Case 5:11-cv OLG-JES-XR Document 179 Filed 08/10/11 Page 3 of 13 Department of Justice, to address questions of constitutionality, this predicate of preclearance and the Department of Justice s subsequent objection to the LRB plan did not initially and does not now implicate our subject matter jurisdiction. Id. at 526 n.14. Ten years later, the district court went on to conduct a single consolidated hearing addressing all pending objections to the State s plans. See Terrazas v. Slagle, 789 F. Supp. 2d 828, 835 (W.D. Tex (noting the lack of a precleared Senate plan at the time of the Court s order. Likewise, in Sessions v. Perry, Case No. 2:03cv354-TJW (E.D. Tex., the trial began on December 11, 2003, a week before the preclearance decision. Put differently, although this Court should withhold final judgment until preclearance is granted, that does not affect its jurisdiction to hear the case under the existing schedule. Further, although this Court must temporarily withhold final judgment pending preclearance, its subject matter jurisdiction is unaffected because the Court can already consider temporary plans that might be necessary if preclearance were delayed or denied. Indeed, in Wise v. Lipscomb, 437 U.S. 535 (1978, the U.S. Supreme Court recognized that district courts retain jurisdiction to implement temporary redistricting plans in the event a temporary plan is necessary to ensure that elections occur on time: Pending such submission and preclearance, if a State s electoral processes are not to be completely frustrated, federal courts will at times necessarily be drawn further into the reapportionment process and required to devise and implement their own plans. Id. at 542. Recognizing the possibility of an interim court-drawn plan, several of the plaintiffs in the consolidated cases have asked the Court to order a new redistricting plan consistent with federal law if the State s plans cannot be implemented in time. 1 Although the State believes its 1 See, e.g., Second Amended Complaint of Plaintiffs Texas Latino Redistricting Task Force, et al. (Doc. # 68 60(e (requesting that the Court order new redistricting plans for congressional and Texas House districts that do not dilute, cancel out or minimize the voting strength of Latino voters ; First Amended Complaint [of Rodriguez Plaintiffs] 3

4 Case 5:11-cv OLG-JES-XR Document 179 Filed 08/10/11 Page 4 of 13 maps fully satisfy the Voting Rights Act and hopes to avoid the imposition of temporary redistricting plans, the possibility of delayed preclearance requires that the State preserve that option. In the unfortunate event the impending election cycle requires this Court to draw interim electoral maps, the State s legislatively enacted redistricting plans must form the basis of any temporary remedial plans drawn by this Court, even if the State s maps have not yet been precleared. As the Supreme Court explained in Upham v. Seamon, Whenever a district court is faced with entering an interim reapportionment order that will allow elections to go forward it is faced with the problem of reconciling the requirements of the Constitution with the goals of state political policy.... An appropriate reconciliation of these two goals can only be reached if the district court s modifications of a state plan are limited to those necessary to cure any constitutional or statutory defect. Upham v. Seamon, 456 U.S. 37, 43 (1982 (quoting Connor v. Finch, 431 U.S. 407, 414 (1977. Thus in Upham, the Supreme Court held that the federal district court erred by unilaterally modifying the State s electoral plan in the absence of a finding that the Dallas County reapportionment plan offended either the Constitution or the Voting Rights Act. Id. It follows from Wise and Upham that whether the Court is directly adjudicating the State s redistricting plans under the Constitution and the Voting Rights Act or whether it is creating an interim plan to replace the State s existing electoral districts the relevant evidence in both cases will be similar, if not identical. The evidence that purportedly supports plaintiffs Section 2 and constitutional claims must be considered when a remedial plan is drawn because the Court must defer to the Legislature s judgments unless those decisions are inconsistent with federal law. Accordingly, this Court s findings and conclusions under Section 2 and the Constitution will be necessary whether or not the State s plans have been precleared. The difference is that if (Doc. # 23 35(f (requesting that the Court consider briefing and evidence, and otherwise take actions necessary to determine and order a valid congressional redistricting plan for the State of Texas for use during the 2012 elections ; 4

5 Case 5:11-cv OLG-JES-XR Document 179 Filed 08/10/11 Page 5 of 13 preclearance has been granted, the court will consider the evidence to determine direct challenges to a Section 5-compliant, legally effective map but if preclearance is delayed or denied, the Court will consider the evidence in the context of a malapportionment claim under Article I 2 or the Equal Protection Clause in order to identify modifications necessary to create an interim courtdrawn plan. In either case, evidence proving or disproving whether the State s plans are consistent with Section 2 and the Constitution is essential to the Court s decision. Indeed, any interim plan must be as fully formed and complete as possible, addressing any and all infirmities under Section 2, Section 5, and the Constitution but otherwise preserving the Legislature s judgment. Although the Court cannot enter final judgment on the direct constitutional and statutory challenges to the State s redistricting plans before preclearance is granted, the Court will have to move quickly once the D.C. District Court issues its preclearance decision. The requirement that final judgment await preclearance does not bar this Court from considering evidence and argument pending preclearance. See, e.g., Upham, 456 U.S. at 38 (noting that the three-judge district court held a hearing but delayed entry of judgment until the decision on preclearance. In fact, proceeding with the case during preclearance is essential to the timely entry of final judgment once the preclearance decision is made or when the time becomes too short to wait any longer. This is exactly what happened in Balderas, where the Court explained that it would allow the parties to commence their case in order to reduce disruption in the electoral process. At the same time we will await any required preclearance before finally closing the evidence, and before taking the case under submission. Balderas, et al. v. Texas, et al., No. 6:01cv158 (E.D. Tex (Order of Oct. 11, 2001, Doc. No A month later, when preclearance was still pending, the court directed the parties to urge upon the court their competing plans. See id. (Order of November 8, 2001, Doc. No This Court should, therefore, maintain the existing schedule and consider 5

6 Case 5:11-cv OLG-JES-XR Document 179 Filed 08/10/11 Page 6 of 13 evidence and argument on the alleged defects in the plans so that it may enter a judgment or draw a remedial plan, as the case may be, in time for the 2012 elections to proceed. II. Denial of Preclearance Will Require this Court to Draw a Remedial Redistricting Plan for the 2012 Elections. If the DDC Court does not grant preclearance, does this matter return to the Texas Legislature for an opportunity to create new maps? Or upon any rejection of preclearance does this Court immediately undertake the drawing of remedial maps? If the D.C. District Court does not preclear the State s congressional map, this Court will have to draw remedial maps for the 2012 elections because the Texas Legislature will not have time to convene in special session, pass new maps, and obtain preclearance before the election cycle candidate filing period begins on November 12, As a general rule, federal courts defer to the states to draw electoral districts in the first instance, see, e.g., Growe v. Emison, 507 U.S. 25 (1993, and to provide a remedy once an electoral plan is found to violate federal law. See, e.g., Westwego Citizens for Better Government v. City of Westwego, 946 F.2d 1109, 1124 (5th Cir ( [T]his Court has repeatedly held that it is appropriate to give affected political subdivisions at all levels of government the first opportunity to devise remedies for violations of the Voting Rights Act.. In this case, the general rule of deference is complicated by the fact that the Texas Legislature is not in session and even if it were, any remedial redistricting bill would have to be precleared before it could be implemented. Because the Texas Legislature is not currently in session, there is effectively no legislature to which the redistricting plans can return. The Legislature cannot consider a new redistricting plan unless the Governor calls it into special session for that purpose. See TEX. CONST. Art. III, 5(a ( The Legislature shall meet every two years at such time as may be provided by law and at 6

7 Case 5:11-cv OLG-JES-XR Document 179 Filed 08/10/11 Page 7 of 13 other times when convened by the Governor. ; id. Art. IV, 8 ( The Governor may, on extraordinary occasions, convene the Legislature at the seat of Government, or at a different place, in case that should be in possession of the public enemy or in case of the prevalence of disease threat. His proclamation therefore shall state specifically the purpose for which the Legislature is convened.. The Court cannot order the Governor to convene a special session, nor can it order the Legislature to pass a redistricting bill once convened. See Printz v. United States, 521 U.S. 898, 912 (1997 ( [S]tate legislatures are not subject to federal direction. ; New York v. United States, 505 U.S. 144 (1992 (holding that Congress cannot direct the states to enact legislation. Even if the Legislature were available to enact a remedial plan, the new plan would be subject to preclearance and therefore could not be used for the 2012 election cycle until such plan were precleared. See, e.g., Wise v. Lipscomb, 437 U.S. 535, 542 (1978 ( A new reapportionment plan enacted by a State, including one purportedly adopted in response to invalidation of the prior plan by a federal court, will not be considered effective as law,... until it has been submitted and has received clearance under 5. (citations omitted. A second attempt at preclearance would almost certainly take the State past the November 12, 2011 filing deadline for 2012 elections. 2 Thus as a practical matter, the need to have a plan in place for the upcoming elections will require this Court to create an interim plan if preclearance is delayed or denied. See, e.g., LULAC v. Perry, 548 U.S. 399, 415 ( [W]hen those with legislative responsibilities do not respond, or the imminence of a state election makes it impractical for them to do so, it becomes the unwelcome obligation of the federal court to devise and impose a reapportionment plan pending later legislative action. (quoting Wise v. Lipscomb, 437 U.S. 535, 540 (1978. III. Discovery and Hearing Pending Preclearance is Appropriate and Necessary to Ensure Timely Resolution of the Section 2 and Constitutional Claims. 2 See, e.g., Texas Secretary of State, Important 2012 Election Dates, at /2012dates.shtml. 7

8 Case 5:11-cv OLG-JES-XR Document 179 Filed 08/10/11 Page 8 of 13 Are there any matters that can be bifurcated, discovery undertaken and a trial held, at the same time staying any matters being considered by the DDC Court? If so, what matters can be bifurcated and which abated? To the extent the plaintiffs claims directly challenge the electoral maps for which preclearance is pending, the State does not contend that any particular claim can be bifurcated and finally adjudicated before preclearance occurs. As explained in response to the Court s first question, however, the Court may undertake discovery and hold a trial on the State s redistricting plans while preclearance is pending because of the substantial, if not complete, overlap of issues in a direct challenge to precleared plans and a malapportionment claim seeking a court-ordered interim plan. Although the principal claims may not be subject to bifurcation for purposes of trial, a number of plaintiffs claims should be decided on jurisdictional grounds and on motions for summary judgment before trial. Jurisdictional challenges have been made, for example, to the standing of certain plaintiffs and to the justiciability of claims that implicate political questions and challenges to the classification of the State s prison population. Any direct constitutional claims are likewise ripe for summary judgment because they require evidence of actual intent to discriminate on the basis of race or ethnicity, which are not supported by the facts. Finally, claims that would require the Court to adjust the Census count or modify electoral districts to compensate for alleged defects in the Census raise jurisdictional issues of actual injury, traceability, and redressability that may be resolved before trial. CONCLUSION For the reasons stated above, the State Defendants respectfully submit that the Court can and should maintain the existing trial schedule and proceed up to the point of final judgment while preclearance is pending. 8

9 Case 5:11-cv OLG-JES-XR Document 179 Filed 08/10/11 Page 9 of 13 Dated: August 10, 2011 Respectfully Submitted, GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General BILL COBB Deputy Attorney General for Civil Litigation DAVID SCHENCK Deputy Attorney General for Legal Counsel DAVID C. MATTAX Director of Defense Litigation J. REED CLAY, JR. Special Assistant and Senior Counsel to the Attorney General _/s/ David J. Schenck DAVID J. SCHENCK Deputy Attorney General for Legal Counsel Texas Bar No ANGELA V. COLMENERO Assistant Attorney General Texas Bar No MATTHEW H. FREDERICK Special Counsel to the Attorney General Texas Bar No ANA M. JORDAN Assistant Attorney General Texas Bar No P. O. Box 12548, Capitol Station Austin, Texas Phone No. ( Fax No. ( ATTORNEYS FOR DEFENDANTS 9

10 Case 5:11-cv OLG-JES-XR Document 179 Filed 08/10/11 Page 10 of 13 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served on August 10, 2011 on the following via the Court s electronic notification system or by other means where indicated: DAVID RICHARDS Texas Bar No Richards, Rodriguez & Skeith LLP 816 Congress Avenue, Suite 1200 Austin, TX davidr@rrsfirm.com RICHARD E. GRAY, III State Bar No Gray & Becker, P.C. 900 West Avenue, Suite 300 Austin, TX Rick.gray@graybecker.com ATTORNEYS FOR PLAINTIFFS PEREZ, DUTTON, TAMEZ, HALL, ORTIZ, SALINAS, DEBOSE, and RODRIGUEZ JOSE GARZA Texas Bar No Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, Texas 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 (facsimile ATTORNEYS FOR MEXICAN AMERICAN LEGISLATIVE CAUCUS GERALD H. GOLDSTEIN State Bar No ggandh@aol.com DONALD H. FLANARY, III State Bar No donflanary@hotmail.com Goldstein, Goldstein and Hilley 310 S. St. Mary s Street 29 th Floor, Tower Life Bldg. San Antonio, TX (facsimile PAUL M. SMITH psmith@jenner.com MICHAEL B. DESANCTIS mdesanctis@jenner.com JESSICA RING AMUNSON jamunson@jenner.com Jenner & Block LLP 1099 New York Ave., NW Washington, D.C Served via electronic mail J. GERALD HEBERT 191 Somervelle Street, # 405 Alexandria, VA hebert@voterlaw.com JESSE GAINES P.O. Box Fort Worth, TX gainesjesse@ymail.com Served via electronic mail ATTORNEYS FOR PLAINTIFFS QUESADA, MUNOZ, VEASEY, HAMILTON, KING and JENKINS 10

11 Case 5:11-cv OLG-JES-XR Document 179 Filed 08/10/11 Page 11 of 13 NINA PERALES Texas Bar No MARISA BONO REBECCA MCNEILL COUTO Mexican American Legal Defense and Education Fund 110 Broadway, Suite 300 San Antonio, TX ( ( (facsimile MARK ANTHONY SANCHEZ ROBERT W. WILSON Gale, Wilson & Sanchez, PLLC 115 East Travis Street, Ste San Antonio, TX (facsimile ATTORNEYS FOR PLAINTIFFS TEXAS LATINO REDISTRICTING TASK FORCE, CARDENAS, JIMENEZ, MENENDEZ, TOMACITA AND JOSE OLIVARES, ALEJANDRO AND REBECCA ORTIZ ROLANDO L. RIOS Law Offices of Rolando L. Rios 115 E Travis Street Suite 1645 San Antonio, TX rrios@rolandorioslaw.com ATTORNEY FOR INTERVENOR- PLAINTIFF HENRY CUELLAR LUIS ROBERTO VERA, JR. Law Offices of Luis Roberto Vera, Jr. & Associates 1325 Riverview Towers 111 Soledad San Antonio, Texas irvlaw@sbcglobal.net GEORGE JOSEPH KORBEL Texas Rio Grande Legal Aid, Inc North Main San Antonio, TX korbellaw@hotmail.com ATTORNEYS FOR INTERVENOR- PLAINTIFF LEAGUE OF UNITED LATIN AMERICAN CITIZENS GARY L. BLEDSOE State Bar No.: Law office of Gary L. Bledsoe 316 W. 12 th Street, Ste. 307 Austin, TX (facsimile garybledsoe@sbcglobal.net ATTORNEY FOR INTERVENOR- PLAINTIFFS TEXAS STATE CONFERENCE OF NAACP BRANCHES, TEXAS LEGISLATIVE BLACK CAUCUS, EDDIE BERNICE JOHNSON, SHEILA JACKSON-LEE, ALEXANDER GREEN, HOWARD JEFFERSON, BILL LAWSON, and JUANITA WALLACE 11

12 Case 5:11-cv OLG-JES-XR Document 179 Filed 08/10/11 Page 12 of 13 JOHN T. MORRIS 5703 Caldicote St. Humble, TX ( Served via electronic mail JOHN T. MORRIS, PRO SE MAX RENEA HICKS Law Office of Max Renea Hicks 101 West Sixth Street Suite 504 Austin, TX ( / (fax ATTORNEY FOR PLAINTIFFS CITY OF AUSTIN, TRAVIS COUNTY, ALEX SERNA, BEATRICE SALOMA, BETTY F. LOPEZ, CONSTABLE BRUCE ELFANT, DAVID GONZALEZ, EDDIE RODRIGUEZ, MILTON GERARD WASHINGTON, and SANDRA SERNA CHAD W. DUNN K. SCOTT BRAZIL Brazil & Dunn 4201 FM 1960 West, Suite 530 Houston, TX (facsimile ATTORNEYS FOR INTERVENOR- DEFENDANTS TEXAS DEMOCRATIC PARTY and BOYD RICHIE VICTOR L. GOODE Asst. Gen. Counsel, NAACP 4805 Mt. Hope Drive Baltimore, MD (facsimile ATTORNEYS FOR INTERVENOR- PLAINTIFF THE TEXAS STATE CONFERENCE OF NAACP BRANCHES ROBERT NOTZON State Bar No Law Office of Robert S. Notzon 1507 Nueces Street Austin, TX (facsimile ALLISON JEAN RIGGS ANITA SUE EARLS Southern Coalition for Social Justice 1415 West Highway 54, Ste. 101 Durham, NC (facsimile ATTORNEYS FOR INTERVENOR- PLAINTIFFS TEXAS STATE CONFERENCE OF NAACP BRANCHES, EARLS, LAWSON, WALLACE, and JEFFERSON 12

13 Case 5:11-cv OLG-JES-XR Document 179 Filed 08/10/11 Page 13 of 13 STEPHEN E. MCCONNICO SAM JOHNSON S. ABRAHAM KUCZAJ, III Scott, Douglass & McConnico One American Center 600 Congress Ave., 15th Floor Austin, TX ( / (fax ATTORNEYS FOR PLAINTIFFS CITY OF AUSTIN, TRAVIS COUNTY, ALEX SERNA, BALAKUMAR PANDIAN, BEATRICE SALOMA, BETTY F. LOPEZ, CONSTABLE BRUCE ELFANT, DAVID GONZALEZ, EDDIE RODRIGUEZ, ELIZA ALVARADO, JOSEY MARTINEZ, JUANITA VALDEZ-COX, LIONOR SOROLA-POHLMAN, MILTON GERARD WASHINGTON, NINA JO BAKER, and SANDRA SERNA JOAQUIN G. AVILA P.O. Box Seattle, WA (facsimile Served via electronic mail ATTORNEY FOR MEXICAN AMERICAN LEGISLATIVE CAUCUS DONNA GARCIA DAVIDSON PO Box Austin, TX ( ( (facsimile FRANK M. REILLY Potts & Reilly, L.L.P. P.O. Box 4037 Horseshoe Bay, TX / / (fax ATTORNEYS FOR DEFENDANT STEVE MUNISTERI DAVID ESCAMILLA Travis County Asst. Attorney P.O. Box 1748 Austin, TX ( Served via electronic mail ATTORNEY FOR PLAINTIFF TRAVIS COUNTY KAREN M. KENNARD 2803 Clearview Drive Austin, TX ( (fax Served via electronic mail ATTORNEY FOR PLAINTIFF CITY OF AUSTIN _/s/ David J. Schenck DAVID J. SCHENCK Deputy Attorney General for Legal Counsel 13