No. 11-A520 IN THE SUPREME COURT OF THE UNITED STATES

Transcription

1 No. 11-A520 IN THE SUPREME COURT OF THE UNITED STATES RICK PERRY, in his official as Governor of Texas, HOPE ANDRADE, in her official capacity as Secretary of State, and the STATE OF TEXAS, v. SHANNON PEREZ et al., Applicants, Respondents. RESPONDENTS MEXICAN AMERICAN LEGISLATIVE CAUCUS (MALC), SHANNON PEREZ ET AL., TEXAS STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (NAACP), AND THE LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC) JOINT BRIEF IN OPPOSITION TO EMERGENCY APPLICATION FOR STAY OF INTERLOCUTORY ORDER DIRECTING IMPLEMENTATION OF INTERIM TEXAS HOUSE OF REPRESENTATIVES REDISTRICTING PLAN PENDING APPEAL TO THE UNITED STATES SUPREME COURT JOSE GARZA Counsel of Record, Respondent MALC Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, Texas DAVID RICHARDS Respondent Perez Richards, Rodriguez, & Skeith LLP 816 Congress Avenue, Suite 1200 Austin, Texas RICHARD GRAY Counsel Respondent Perez Gray & Becker, P.C. 900 West Avenue,Suite 300 Austin, TX (512) (512) (fax) JOAQUIN G. AVILA Counsel for Respondent MALC P.O. Box Seattle, WA (206) (206) (fax) PAMELA KARLAN Counsel for Respondent MALC Stanford Law School Supreme Court Litigation Clinic 559 Nathan Abbott Way Stanford, CA 9430 ALLISON J. RIGGS (pro hac vice) ANITA S. EARLS Counsel for Respondent NAACP Southern Coalition for Social Justice 1415 W. Highway 54, Suite 101 Durham, NC (919) (phone) (919) (fax) i

2 ROBERT S. NOTZON Counsel for Respondent NAACP (D.C. Bar No. TX0020 ) Law Office of Robert S. Notzon 1507 Nueces Street Austin, Texas (512) (phone) (512) (fax) Robert@NotzonLaw.com GARY L. BLEDSOE Counsel for Respondent NAACP Law Office of Gary L. Bledsoe and Associates State Bar No West 12th Street, Suite 307 Austin, Texas Telephone: Fax: Garybledsoe@sbcglobal.net VICTOR GOODE Counsel for Respondent NAACP Assistant General Counsel NAACP 4805 Mt. Hope Drive Baltimore, MD Telephone: Fax: vgoode@naacpnet.org LUIS ROBERTO VERA, JR. LULAC NATIONAL GENERAL COUNSEL Counsel for Respondent LULAC 1325 Riverview Towers 111 Soledad San Antonio, Texas (210) lrvlaw@sbcglobal.net ii

3 TABLE OF CONTENTS Table of Authorities... v Respondents Joint Brief in Opposition to the Emergency Motion for Stay... 1 Procedural History and Relevant Facts Six sitting federal judges have found meaningful deficiencies in the enacted State House plan Any timing problems that have arisen with respect to the Section 5 proceeding are directly attributable to choices made by the State The plan at issue is not a wholesale revision and also mirrors the plan of the dissent. 7 Argument and Authorities... 8 A. The District Court Did Not Decide the Case Erroneously 9 B. Court Ordered Interim Plan Correctly Follows Traditional Standards For Court Ordered Interim Redistricting Plans This Court requires that court ordered plans adhere more closely to one person one vote requirements than legislative plans The District Court s plan should comply with Sections 5 and 2 of the Voting Rights Act The District Court s plan should and did adhere to state policy choices as evidenced in the State s last legal plan.. 17 C. The State is Unable to Demonstrate Irreparable Harm and a Balancing of the iii

4 Equities in this Case Favor s the Respondent. 18 Conclusion. 20 iv

5 TABLE OF AUTHORITIES Cases Abrams v. Johnson, 521 U.S. 74 (1997)...15, 16, 17,18 Balderas v. State, No. 6:01-cv-158, 2001 WL (E.D. Tex. Nov. 28, 2001) 12 Balderas v. Texas, 536 U.S. 919 (2002) Bartlett v. Stephenson, 535 U.S (2002)... 9 Branch v. Smith, 538 U.S. 254, (2003) 14 Chapman v. Meier, 420 U.S. 1 (1975)... 5, 15, 16 Clark v. Roemer, 500 U.S. 646 (1991). 4, 10 Cook v. Luckett, 735 F.2d 912, 918 (5th Cir. 1984). 12 Cox v. Larios 547 U.S. 942 (2004).. 5, 6, 16 Connor v. Finch, 431 U.S. 407, (1977)... 5, 14, 15, 16 Graves v Barnes, 343 F. Supp. 704 (W.D. Tex. 1972).. 1, 9 Hughley v. Adams, 667 F.2d 25 (11th Cir. 1982).. 15 Jordan v. Winter, 541 F. Supp (N.D. Miss. 1982) Lopez v. Monterey County, 519 U.S. 9 (1996) 4, 9, 10, 11 McDaniel v. Sanchez, 452 U.S. 130 (1981) , 5, 11, 15, 17, 19 Merrell-National Laboratories, Inc. v. Zenith Laboratories, Inc., 579 F.2d 786 (3d Cir. 1978)... 8 Nken v. Holder, 556 U.S.418 (2009)... 9 Ohio Citizens for Responsible Energy, Inc. v. Nuclear Regulatory Comm n, 479 U.S (1986).. 20 Richards v. Terrazas, 505 U.S (1992).. 12 Second City Music, Inc. v. City of Chicago, 333 F.3d 846 (7th Cir. 2003) 19 Terrazas v. Slagle, 789 F. Supp. 828 (W.D. Tex. 1991).... 2, 12 Terrazas v. Clements, 537 F. Supp. 514 (N.D. Tex 1982).. 2 v

6 Times-Picayune Publishing Corp. v. Schulingkamp, 419 U.S (1974).. 9 United States v. Ingersoll-Rand Co., 320 F.2d 509 (3d Cir. 1963). 9 Upham v. Seamon, 456 U.S. 37 (1981) 3, 11, 12, 13, 14 Vera v. Bush, 933 F. Supp (S.D. Tex. 1996) Whalen v. Roe, 423 U.S (1975)... 9 White v. Regester, 412 US 755 (1973) Wise v. Lipscomb, 434 U.S (1977) 18 Statutes 42 U.S.C. 1973(c) 12, U.S.C (Section 2). 14 Federal Register 28 C.F.R. 51.1(a)(1) vi

7 No. IN THE SUPREME COURT OF THE UNITED STATES RICK PERRY, in his official as Governor of Texas, HOPE ANDRADE, in her official capacity as Secretary of State, and the STATE OF TEXAS, v. SHANNON PEREZ et al., Applicants, Respondents. RESPONDENTS MEXICAN AMERICAN LEGISLATIVE CAUCUS (MALC), SHANNON PEREZ ET AL., TEXAS STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (NAACP), AND THE LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC) JOINT BRIEF IN OPPOSITION TO EMERGENCY APPLICATION FOR STAY OF INTERLOCUTORY ORDER DIRECTING IMPLEMENTATION OF INTERIM TEXAS HOUSE OF REPRESENTATIVES REDISTRICTING PLAN PENDING APPEAL TO THE UNITED STATES SUPREME COURT TO THE HONORABLE ANTONIN SCALIA, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE FIFTH CIRCUIT: This is not a novel experience for the State of Texas. Although the State argued below that unelected federal judges possess neither the constitutional power nor the political competence to make the policy choices essential to redistricting, in fact, unelected federal judges have been drawing interim election plans in Texas for decades. Most notably, in 1972, a three-judge federal court drafted and ordered into place single-member legislative districts for Dallas and Bexar Counties. Graves v Barnes, 343 F. Supp. 704 (W.D. Tex. 1972). A stay application similar to the present filing was presented and denied. The Supreme Court, 1

8 following submission, unanimously affirmed the trial court s implementation of court ordered single-member districts. White v. Regester, 412 US 755 (1973). 1 The Respondents, Rick Perry et al., have asked for a stay of the enforcement of an interlocutory order directing the implementation of an interim court ordered redistricting plan for the 2012 Texas elections for Texas House of Representatives. The respondents application is based on mischaracterizations of the facts and the law. After release of the 2010 Census in February 2011, it was clear to the State and all others involved in redistricting that all the state-wide redistricting plans were malapportioned and unusable for future Texas elections. (Appendix to Application for Emergency Stay, Exhibit 1, Interim House Order, p. 2) For instance, the Texas House plan had a top to bottom deviation of 109.4% between the largest and smallest population districts and a mean deviation of 14.8%. 2 In addition, state officials were aware of their obligations under Section 5 of the Voting Rights Act since Texas has been a covered jurisdiction for over 30 years. Texas understood, therefore, that no new redistricting enactment could be enforced without the requisite federal approval. Texas and its officials were well aware that all the prerequisites for implementation and use of any new redistricting plans for Texas elections needed to be complete before November 12, 2011, because Texas law required that candidate filing begin on that date. (See Respondents Appendix, Exhibit 2, Trial Testimony of Texas Secretary of State official, Anne McGeehan) Nevertheless, the State legislature did not pass its Texas House plan until May 21, 2011; the Governor did not sign the enactment into law until June 17, 2011; and the Texas Attorney General did not commence the preclearance process until July 19, 2011 when Texas filed a declaratory judgment action seeking 1 Court ordered interim election plans were implemented in the 1980 s, 1990 s and, of course, again after the 2000 census. See Terrazas v. Clements, 537 F. Supp. 514 (N.D. Tex 1982), Terrazas v. Slagle, 789 F. Supp. 828 (W.D. Tex. 1991); Balderas v. Texas, 536 U.S. 919 (2002). 2 See Texas Legislative Council web site at 2

9 preclearance of the Texas House plan before the United States District Court for the District of Columbia. While the State was well within its rights to seek preclearance through the judicial process rather than administratively, it is not uncommon for judicial preclearance to result in protracted litigation, especially when the motive of the jurisdiction is in play, as it is the case here. 3 In this case, Section 5 preclearance is simply not forthcoming. Therefore, since the 2001 Texas House plan is severely malapportioned, and the newly enacted 2011 Texas House plan has not been precleared, the issue before the Court here is whether 2012 elections for the Texas House will be conducted under the District Court s interim plan or not at all. The State of Texas, as stated above, simply has no legally enforceable redistricting plan for Texas House elections. Yet, Texas now asks that, contrary to clear and consistent Supreme Court precedent, the District Court in Texas should be required to implement a legislative plan that has not been precleared pursuant to Section 5 of the Voting Rights Act. Moreover, Texas asks that the District Court in Texas be required to evaluate the Constitutional and statutory compliance of the unprecleared redistricting plan, even though clear Supreme Court precedent forecloses such a review by the Texas Court and instead places exclusive jurisdiction for such a determination with the United States District Court for the District of Columbia. In essence, Texas is asking this Court to grant judicial preclearance of its plan, something clearly beyond the authority of the Court. In addition, the State s reliance on the Court s decision in Upham v. Seamon, 456 U.S. 37 (1981) is misplaced. Upham involved a state redistricting plan that had gone through a complete Section 5 process and where a final decision had been released by the United States Department 3 See generally City of Richmond v. United States, 422 U.S. 358 (1975); Beer v. United States, 425 U.S. 130 (1976). For years the courts in these cases struggled with the difficult issues that were raised by the cases. In the meantime the voters of Richmond and New Orleans were unable to cast any votes, since elections were enjoined pending preclearance. 3

10 of Justice, describing precisely what portions of the plan were discriminatory. Here, the plan is still pending review in the State s chosen forum, the United States District Court for the District of Columbia. The only determination made by that court was that the State of Texas is not entitled to summary judgment and that the State of Texas was wrong in the manner and standard it applied in evaluating compliance with Section 5. Still, the State of Texas asks that the District Court in Texas be required to surmise how the court in the District of Columbia will evaluate the Texas map for compliance with Section 5, and through guesswork and conjecture cure the deficiencies. Of course, the Court has foreclosed local courts from such inquiries and evaluations until the Section 5 process is complete. Finally, the State s attempts to distinguish clear Supreme Court rulings that are on point, to justify its radical position, are simply wrong. The Court has never determined that the State s obligation under Section 5 is met simply by submitting a voting change for review under Section 5. Yet, the State suggests that the Court s clear and unambiguous rulings in McDaniel v. Sanchez, 452 U.S. 130, 153 & n.35 (1981), Clark v. Roemer, 500 U.S. 646 (1991) and Lopez v. Monterey County, 519 U.S. 9 (1996), should be read to foreclose the use of unprecleared elections changes only if the jurisdiction has not submitted the changes. The State also criticizes the District Court s interim plan for adhering to requirements placed on courts drawing interim court ordered plans by this Court. For instance, the District Court made efforts to equalize population between districts where wide ranging deviations from ideal population were simply not justified. The State argues that such efforts are inconsistent with the State s legislative prerogative and that the District Court was wrong to alter the population deviations between districts. Yet, this Court has demanded stricter compliance with one person, one vote from court drawn plans than from legislative bodies. Moreover, even 4

11 legislative bodies cannot rely on a 10% top to bottom deviation safe harbor. Cox v. Larios 547 U.S. 942 (2004). In addition, the State objects to the District Court s restoring a Latino opportunity district in Nueces County, contained in the benchmark plan, but that the State eliminated in its unprecleared plan, because to do so means that Nueces County is not kept whole. Yet, courts have less leeway than legislatures to use county line rules to avoid compliance with federal law. Connor v. Finch, 431 U.S. 407, (1977) (citing Chapman, 420 U.S. at 26-27). Moreover, court ordered interim plans should follow the appropriate Section 5 standards, including the body of administrative and judicial precedents developed in Section 5 cases. McDaniel v. Sanchez, 452 U.S. 130, (1981) (quoting S. REP. NO , at (1975) on the extension of the Voting Rights Act.) In sum the State of Texas application for stay should be denied. Procedural History and Relevant Facts We will briefly argue the following factual matters: 1) six sitting federal judges have found meaningful deficiencies in the enacted State House plan, 2) any timing problems that have arisen with respect to the Section 5 proceeding are directly attributable to choices made by the State, and 3) the plan at issue is not a wholesale revision and also mirrors the plan of the dissent. 1. Six Federal Judges Have Manifested Serious Concerns With The State House Plan. First, the three-judge district court in the District of Columbia was presented hundreds of pages of briefs and exhibits and a day of arguments on the State s motion for summary judgment. The result was the denial of the motion and a unanimous finding that the State of Texas used an improper standard or methodology to determine if its maps would adversely affect minority voters. Of course, that improper methodology is at the heart of the State 5

12 Legislature s policy judgments which we are now told must be honored. For it is the minority house districts that are the core of the State s complaint with the interim maps. The State s filing glosses over the fact that it is also unhappy with Judge Smith s proposed remedy plan. (Emergency Application at 19, fn. 11). Thus, for example, the State attacks the interim plan for Nueces County, choosing to ignore that Judge Smith s proposal was similar because, in his view, the Legislature dismantled a minority opportunity district in Nueces County, raising possible concerns under section 5. (Order, Doc. 528 at 21.) Likewise, Judge Smith tracked the majority plan in Hidalgo and Cameron Counties because of an extreme gerrymander and palpable population disparities. (Id.) Finally, although the majority and the dissent plans differ somewhat in Harris and Dallas Counties, it is clear the panel was unanimous in its view that in these most populous counties, in the words of Judge Smith, the Legislature created substantial population disparities.in a manner that may raise concerns of racial or partisan gerrymandering in violation of Larios v. Cox. (Id. at 22.) 2. The State s Timing Problems Are Attributable To Its Own Actions. The State laments To be sure, the fact that the three-judge court in the District of Columbia has not acted with greater dispatch puts everyone in a difficult position. (Emergency App. at 4.) The State House Plan was enacted on May 21, 2011 and two and onehalf months later, the State filed its D.C. lawsuit seeking preclearance. Assuredly, the State had the right to choose the slower route of judicial preclearance, but it is equally obvious that had the State chosen to submit the House Plan for Justice Department review, the Section 5 issue would have been long since resolved. Having gone to the D.C. court, the State then insisted that the Section 5 issues should be resolved on motion for summary judgment rather than being set for 6

13 trial. The State s motion for summary judgment was 55 pages long and its reply filings exceeded 100 pages. It is not surprising that the motion was not quickly resolved. The State now has the burden of proof to persuade that Court that the redistricting plans are not tainted by discriminatory motive. There are a cluster of intervenors opposing the State as well as the Justice Department. There is no trial setting in the D.C. Court, yet the State boldly asserts it expects a decision before any elections would take place. (Emergency App. at 4) But that assertion assumes far too much and ignores election realities, such as absentee and military voting and candidates having an opportunity to campaign. For whatever reason, the State chose the slow boat and that choice should not be bootstrapped into justification for an emergency stay. 3. The plan at issue is no wholesale revision and mirrors the dissent s plan. The hearing on plans occupied several days of testimony below. The Attorney General advised the Court: whether you consider this deference to the State plan or simply the State plan being a proposal for the Court to consider, then what I am suggesting to the Court is there is some latitude there. (Hearing Transcript Nov. 3, 2011, at 383.) Later in the proceeding, the State acknowledged the ultimate lines have not been drawn and they will be drawn by this Court. (Id at 719.) These notions seem to have disappeared in the State s attack upon what it claims to be wholesale changes in the State map. There are 150 members of the Texas House. The State concedes that 72 of the seats are essentially unchanged. (Emergency App. at 2, fn. 1.) Obviously, there is a numbers game in play. First, we should compare Judge Smith s dissenting map with the majority s map. As we point out elsewhere, the court was unanimous in reconfiguring the Hidalgo and Cameron Districts affecting 7 seats. It was also unanimous in redrawing the 3 seats in Nueces County. 7

14 The Court below was also essentially unanimous in its redrawing of the 12 seats in Dallas and 24 seats in Harris. Although the changes were different, both plans redrew in order to reduce the excessive population deviation. Deviation in the districts, which in the words of Judge Smith, presented problems because they were attributable to racial and partisan gerrymandering. When boiled down to reality, the differences between Judge Smith s plan and that of the majority are relatively minor. The modification of one district in El Paso County and one in Bexar County to address retrogression concerns, and the creation of one minority district in Fort Bend County and another in Bell County. This is hardly wholesale revision of the State s plan, a plan as to which the D.C. threejudge court concluded that the State of Texas used an improper standard or methodology to determine which districts afford minority voters the ability to elect their preferred candidates of choice (Respondents Appendix, Exhibit 1) In addition, the departures were fashioned after the benchmark plan, contrary to the State s assertion that the District Court s decision was to fabricate its own plan from whole cloth. (Emergency App. at 10) Argument and Authorities The State of Texas inflammatory commentary to the contrary notwithstanding, the District Court s restrained and reluctant implementation of an interim court ordered plan for Texas House districts for the 2012 elections followed well established legal principles and was supported by the record in this case. Therefore, the State simply cannot meet its burden for securing a stay of the District Court s order. First, the trial court's factual determinations underlying its decision must be accepted unless clearly erroneous. Merrell-National Laboratories, Inc. v. Zenith Laboratories, Inc., 579 8

15 F.2d 786, (3d Cir. 1978); United States v. Ingersoll-Rand Co., 320 F.2d 509, 525 (3d Cir. 1963). At the outset, it is important to note that the granting of an emergency stay by the Supreme Court in a voting rights case should be done only in the extraordinary case. Bartlett v. Stephenson, 535 U.S. 1301, 1304 (2002) (quoting Whalen v. Roe, 423 U.S. 1313, 1316); See Also Graves v. Barnes, 405 U.S. 1201, 1203 (1972). The applicant must show not only that the denial of the stay is erroneous on the merits, but also that the applicant will suffer irreparable injury if the judgment or court order is not stayed. Whalen v. Roe at This court has described this burden as "heavy", "extraordinary", and that a stay is "[a] remedy that should not be granted in the ordinary case, much less awarded as of right". Nken v. Holder, 556 U.S.418, 438. A Circuit Justice's consideration of in-chambers applications for equitable relief must also be persuaded that there is a fair prospect that five Justices will conclude that the case was erroneously decided below. See, e. g., Graves v. Barnes, 405 U.S. 1201,1203 (1972) (Powell, J., in chambers). In appropriate cases, a Circuit Justice will balance the equities to determine whether the injury asserted by the applicant outweighs the harm to other parties or to the public. Times-Picayune Publishing Corp. v. Schulingkamp, 419 U.S. 1301, 1306 (1974) (Powell J., in chambers). A. The District Court Did Not Decide the Case Erroneously The Supreme Court s decision in Lopez v. Monterey County, 519 U.S. 9 (1996) makes clear that a federal court may not permit an unprecleared plan go into effect on an interim basis or otherwise. In Lopez, supra, a three-judge district court authorized Monterey County to conduct judicial elections under an election plan that has not received federal approval pursuant to 5 of the Voting Rights Act. 519 U.S. at 11. The Supreme Court reversed that decision, 9

16 stating as follows: The District Court's order that the County conduct elections under the unprecleared, at-large judicial election plan conflicts with these principles and with our decision in Clark v. Roemer, 500 U.S. 646 (1991). Lopez, supra, at 20. Interestingly, in Lopez, supra, the State made the novel argument that the decision of the three-judge court below should not be viewed as allowing an unprecleared plan to go into effect, but rather was a situation where the lower court simply exercised its equitable remedial authority and imposed a map. The Supreme Court flatly rejected this distinction. The Court observed that its cases made clear that where a court independently draws a remedial map, no preclearance is required. But, the Court said, where a court adopts a proposal reflecting the policy choices... of the people [in a covered jurisdiction]... the preclearance requirement of the Voting Rights Act is applicable. The Court in Lopez, supra at 22, went on to say: The at-large, countywide system under which the District Court ordered the County to conduct elections undoubtedly reflect[ed] the policy choices of the County; it was the same system that the County had adopted in the first place. It was, therefore, error for the District Court to order elections under that system before it had been precleared by either the Attorney General or the United States District Court for the District of Columbia. The State argues that Lopez is easily distinguished from the situation here because the State has acknowledged its obligation pursuant to Section 5 and is making an effort to secure preclearance. (Application at pp.2-3 ) In other words, the State argues, submission not preclearance is the operative event that not only allows but requires the District Court in Texas to use the State s unprecleared enactment as the Court s plan. (Application at p. 2 ) Yet, the Court s clear and unambiguous language forbids the use of the unprecleared plan: It was, therefore, error for the District Court to order elections under that system before it had been precleared by either the Attorney General or the United States District Court for the District of 10

17 Columbia. Id. (emphasis added). Moreover, use of the State s unprecleared plan, as advocated by the State, would require the implementation of the State s policy choices and thus mandate preclearance of the court s plan. McDaniel v. Sanchez, 452 U.S. 130, 153 & n.35 (1981) The Supreme Court s decision in Lopez thus stands squarely for the proposition that none of the state s enacted plans may be implemented in the forthcoming elections because none has received the requisite Section 5 preclearance. There is no merit to the State s argument that, notwithstanding this general rule, the District Court should have ordered into effect all or part of the same redistricting plan that has failed to receive preclearance. Texas misreads Upham v. Seamon, 456 U.S. 37 (1981), a case that establishes an exception to the general rule outlined above for circumstances in which the Attorney General s objection identified only part of a plan as problematic. This case is not among those to which Upham applies. In Upham, Texas submitted its redistricting plan to the Attorney General for preclearance. The Attorney General interposed an objection that identified two districts as raising concerns under Section 5. With regard to the remainder, the Attorney General noted that the State had satisfied its burden of demonstrating that the plan was nondiscriminatory in purpose and effect. A local district court, hearing a constitutional challenge to the redistricting plan, remedied the concerns specified in those two districts to which the Attorney General had objected. It also redrew the districts in the area of Dallas County, to which the Attorney General had not objected. See Upham, 456 U.S. at 38. In a per curiam opinion, the Supreme Court reversed with respect to the court s modification of the Dallas County districts. It held that, in devising an interim plan, a district court s changes to a legislatively enacted plan should be limited by the nature and scope of the 11

18 violation. Id. at 42. Where the Attorney General has objected to only one part of a plan and has found the remainder unobjectionable, a court should adopt a plan that permits the unobjectionable portion to go into effect. Id. at 43. Upham thus applies to that limited set of cases in which a court can identify and adopt the unoffending parts of an unprecleared plan. South Carolina, 589 F. Supp. at 759 (citing Upham). Under such circumstances, Upham requires the court to minimize violence to those legislative policies embodied in the plan by changing it only to the extent necessary to cure its cognizable flaws. Cook v. Luckett, 735 F.2d 912, 918 (5th Cir. 1984). For example, in Jordan v. Winter, the Attorney General objected that the drawing of certain district lines diluted the African American vote. Jordan v. Winter, 541 F. Supp. 1135, 1143 (N.D. Miss. 1982). The district court was able to accept that decision while drawing a map that embodied many of the legitimate political decisions made by the legislature. Id. Similarly, in Terrazas v. Slagle, 789 F. Supp. 828 (W.D. Tex. 1991), aff d sub. nom. Richards v. Terrazas, 505 U.S (1992), the Attorney General had interposed objections to a Texas House of Representatives statewide redistricting plan only with respect to some regions. Accordingly, the court was able to fashion a remedial plan yet remain loyal to those portions of the state in which no DOJ objections were lodged. Terrazas at 837. And, in Balderas v. State, No. 6:01-cv-158, 2001 WL (E.D. Tex. Nov. 28, 2001), the Attorney General had objected to the dilution of Hispanic voting strength only in certain regions of Texas. Accordingly, the court was able to fashion a remedy that address[ed] all of [the Attorney General s] concerns while preserving that part of the legislative map to which no objection had been issued. Id., 2001 WL at *3.4 12

19 This case does not fall within the narrow exception established by Upham for several reasons. First, Upham applies only where there is an administrative objection from the Attorney General that specifies certain districts and permits a court to identify and implement the unoffending parts. Here, by contrast, there is no administrative determination from the Attorney General at all, because the State has chosen to seek judicial preclearance exclusively through a district court proceeding. While this choice is the State s prerogative, see 42 U.S.C. 1973c(a), the result is that the Attorney General has not pronounced, and could not pronounce, any parts of the plan as compliant with Section 5, as occurred in Upham and its progeny. Moreover, some other litigants have opposed preclearance based on claims different than those of the United States, and it ultimately will be the D.C. court that determines how much, if any, of the enacted plans comply with Section 5. The State misunderstands the significance of that difference. The State observes, correctly, that the Attorney General, rather than lodging a formal objection that has binding legal effect, has simply filed an answer in a lawsuit that has yet to be adjudicated. State Advisory on Interim Plans, Docket Entry 405, p 8. But that does not mean, as the State argues, that the Court now should order the District Court to implement the enacted plan until such time as the D.C. court denies preclearance. (Emergency App. at 10). Rather, it means that the plan may not go into effect until that court expressly grants preclearance. See 42 U.S.C. 1973c(a) (barring a covered jurisdiction from putting change into effect unless and until the court enters such judgment ); 28 C.F.R. 51.1(a)(1) (prohibiting the enforcement of covered law until a declaratory judgment is obtained ). Second, even if the United States Attorney General s filings in the D.C. district court could limit the preclearance controversy in the same fashion as an administrative objection, the 13

20 issues identified by the Attorney General encompass the entire plans. In particular, the United States has taken the position that both the Congressional and State House plans were drawn with discriminatory purpose. 4 Additionally, the United States took the position that the plan has retrogressive effects in that they diminish the ability of minority voters in the state as a whole to elect their preferred candidates of choice. See, e.g., United States Memorandum of Points and Authorities in Support of its Opposition to Plaintiff s Motion for Summary Judgment, Texas v. United States, No. 1:11-cv-1303 (D.D.C., filed Oct. 25, 2011), ECF No Accordingly, there is no unoffending part[] of the plan. Instead, unlike the situation in Upham, the procedural posture of the preclearance process here does not allow for isolating the features of the State s that discriminate, from those that are benign. Finally, the State argues that the District Court in Texas should have assessed the portions of the State s map that violate the Voting Rights Act or the Constitution and made only those adjustments necessary to cure those violations. (Emergency App. at 13, 15) However, this Court has directed that until clearance has been obtained, courts should not address the constitutionality of the new measure. Wise, 437 U.S. at 542; see also Connor, 421 U.S. at 656 (holding that district court erred in adjudicating constitutionality of Mississippi acts based on claims of racial discrimination because [t]hose Acts are not now and will not be effective as laws until and unless cleared pursuant to s 5 ); Branch v. Smith, 538 U.S. 254, (2003) (affirmance of federal district court s injunction against enforcement of state s congressional redistricting plan on ground that plan had not been timely precleared under Voting Rights Act 4 The State makes light of the Attorney General s assertion of intentional discrimination describing the Government s filing as The DOJ pressed the State for proof that Texas did not have a discriminatory purpose in passing the House plan. (Application at 9). Yet, the importance of the Attorney General s position is that it undermines the State s position that the District Court in Texas should be able to extract only the objectionable features of the State s enactment, since the plan as a whole is in play when the claim is one of intentional discrimination. 14

21 required vacatur on ripeness grounds of district court s holding, as alternate ground for injunction, that plan was unconstitutional); Hughley v. Adams, 667 F.2d 25, 26 (11th Cir. 1982) (holding that the court would decline, for reasons of ripeness, to consider plaintiffs remaining objections to the plan before it has received preclearance ) The District Court was therefore correct to refuse to defer to State s unprecleared Texas House redistricting plan. The State is therefore unlikely to prevail on the merits of this case or to convince a majority of this Court of the merits of its claims. B. Court Ordered Interim Plan Correctly Follows Traditional Standards For Court Ordered Interim Redistricting Plans. Where a court is faced with the unwelcome task of drawing an interim plan where no plan has been enacted or precleared, the Court can order a plan into effect but cannot approve any proposed map proposed by state officials (without ordering such plan to undergo Section 5 preclearance). The Court can either draw its own independent plan or choose a plan proposed by one of the litigants. See McDaniel v. Sanchez, 452 U.S. 130, 146 (1981). The court should also ensure that its plan complies with the United States Constitution and the Voting Rights Act, 42 U.S.C (Section 2) and 1973c (Section 5). In a nutshell, the requirements for Court-ordered remedial plans are: population equality; compliance with 2 and 5 of the Voting Rights Act; tailoring the districts as closely as possible to the scope of the violation; and effectuating the legislative choices in the previous districting plans. Vera v. Bush, 933 F. Supp. 1341, 1347 (S.D. Tex. 1996); See also Abrams v. Johnson, 521 U.S. 74, 98 (1997) (quoting and citing Chapman v. Meier, 420 U.S. 1, (1975); Connor v. Finch, 431 U.S. 407, 414 (1977)). 15

22 Yet, the State argues that even with regard to unjustified population variances between districts the District Court was foreclosed from developing an interim plan that smaller population deviations because to do so would ignore the State s policy choice preference for larger deviations. (Emergency App. pp ). Further, the State argues that Texas whole county line rule foreclosed the District Court from reinstating an already existing Latino opportunity district in Nueces County. (Emergency App. at 17-18) Finally, the State argues that the District Court appeared to have purposely created coalition districts that joined African- American, Hispanic and Asian populations. (Emergency App. at pp ) Yet, a review of the District Court s interim court ordered plan simply follows the mandates of this Court in development of court ordered plans or deferred to the state policy choices evidenced in the benchmark plan, the State s 2001 plan. (State s Appendix, Exhibit 1, pp. 7-12) 1. This Court requires that court ordered plans adhere more closely to one person one vote requirements than legislative plans. The State argues that since the State s enacted plan s population variance did not exceed 10%, the District Court s plan should have maintained urban deviations that were wildly disparate simply because that was how the State chose to draw them. Yet, court ordered districts are held to higher standards of population equality than legislative ones. Abrams v. Johnson, 521 U.S. 74, 98 (1997) (quoting and citing Chapman v. Meier, 420 U.S. 1, (1975); Connor v. Finch, 431 U.S. 407, 414 (1977)). As noted above, both the plan developed by the District Court majority and the dissent modified districts in urban counties to balance population between district because as stated by Judge Smith: Fourth, the legislature created substantial population disparities in Dallas and Harris Counties in a manner that may raise concerns of racial and partisan gerrymandering in violation of Larios v. Cox, 300 F. Supp. 2d 1320 (N.D. Ga.), aff d, 16

23 542 U.S. 947 (2004) (State s Appendix, Exhibit 1, p. 22) The District Court was therefore justified in balancing population between districts even where the State s unprecleared plan aimed for population variances to gain political and racial advantages and because court ordered plans are held to a higher standard on this issue. 2. The District Court s plan should comply with Sections 5 and 2 of the Voting Rights Act. The State also argues that the District Court s inclusion of two Latino majority districts in Nueces County compared to only one such district in the State s unprecleared plan showed that in the District Court s plan race predominated the drawing of the plan. (Emergency Application p. 17) Yet, this Court has determined that: [T]he court should follow the appropriate Section 5 standards, including the body of administrative and judicial precedents developed in Section 5 cases. McDaniel v. Sanchez, 452 U.S. 130, (1981) (quoting S. REP. NO , at (1975) on extension of Voting Rights Act); Abrams, 521 U.S. at 96. Moreover, both the majority and the dissent determined that Section 5 justified the restoring of the second Latino opportunity district in Nueces County contained in the benchmark 2001 plan but eliminated in the unprecleared 2011 Texas House plan. (State s Appendix, pp )(Smith dissent: Third, the Legislature dismantled a minority opportunity district in Nueces County, raising possible concerns under section 5. ) The District Court s plan was not a racial gerrymander, as the State asserts but rather a good faith attempt to comply with the standards announced by this Court in the fashioning of a court ordered interim plan. 3. The District Court s plan should and did adhere to state policy choices as evidenced in the State s last legal plan. The State argues that the creation of a coalition district not contained in the State s unprecleared plan demonstrates the District Court s failure to defer to the State s policy choices. 17

24 (Emergency Application, p. 16.) The State mischaracterizes what the District Court did. Where the court was unable to establish uncontested districts in the State s unprcleared plan it did what it is required to do defer to the benchmark 2001 plan for guidance in developing districts: For example, House District 26, situated in Fort Bend County to the southwest of Houston, increased from 44 percent minority population to 60.6 percent minority in The image below shows that the enacted plan substantially reconfigured HD26 in a way that made it irregularly shaped. Evidence presented at trial indicates that this reconfiguration may have been an attempt by the State to intentionally dismantle an emerging minority district. As the images below demonstrate, the interim plan attempts to take this district back to its original configuration in the benchmark while making slight adjustments for population changes. Benchmark (Plan H100) Enacted (Plan H283) Interim Plan (H302) The dissent s incorporation of the State s bizarrely shaped House District 26, despite alleged constitutional violations, constitutes an improper merits determination regarding the validity of that claim. In contrast, the Court s decision to return the challenged district to its original configuration is simply a method of preserving the status quo until the D.C. Court has made a preclearance determination. (State s Appendix, Exhibit 1, pp ). C. The State is Unable to Demonstrate Irreparable Harm and a Balancing of the Equities in this Case Favor s the Respondent Applicants have not met their burden of advancing persuasive reasons why failure to grant could lead to irreparable harm. Wise v. Lipscomb, 434 U.S. 1329, 1333 (1977). Applicants argue that such injury arises because the elections would be conducted pursuant to a plan that has undone the legislative will and therefore The irreparable harm such a result would inflict on our democratic process and all Texas voter is self-evident. (Emergency Application pp ). But as explained above, the panel respected the will of the Texas Legislature as much as it possibly could have, given the constraints of federal law. The District 18

25 Court s interim State House plan, as the State concedes, leaves 72 of the seats essentially unchanged from districts enacted by the legislature and alters only those districts that are at issue in the D.D.C. Section 5 litigation or that are required to meet standards for court ordered plans. The interim plan then returns districts to their original configuration in the benchmark plan, as much as possible. Moreover, the State complains that Texas voters will suffer harm because absent a stay elections will be conducted under an illegal plan. (Emergency Application, pp ) First, the District Court s interim plan adhered to the guidance of this Court for fashioning a court ordered plan and is not illegal. Moreover, the need for a court ordered plan were the actions of the State and this Court should have no interest in protecting parties from injuries they inflict upon themselves. Cf. Second City Music, Inc. v. City of Chicago, 333 F.3d 846, 850 (7th Cir. 2003) ( [S]elf-inflicted wounds are not irreparable injury. Only the injury inflicted by one s adversary counts for this purpose. ). It is no one s fault but the State s that the three-judge court in Texas found itself on the eve of the candidate qualifying deadline with no precleared plan in place. The panel had no choice but to implement an interim map and now the State has no choice but to proceed with elections under that interim map unless and until they can obtain preclearance. In addition, the State s argument that more deference should have been shown to the unprecleared plan would have infected the District Court s plan. McDaniel v. Sanchez, 452 U.S. 130 (1981) Finally, the equities weigh in favor of Respondents. Staying the three-judge court s interim plan would inflict certain harm on the voters far in excess of any harm on Applicants. Voters would be left in limbo as the three-judge panel below is forced to comply with the State s vague request that this Court should remand to the three-judge panel with instructions to requiring the court below to show proper deference to the legislatively enacted Texas House 19

26 plan. Emergency Application, p 25. Thus, voters would be subject to yet another delay in the electoral process caused by the State of Texas. Moreover, should the Court stay the interim plan, ongoing election preparations would be disrupted and voter confusion is sure to result. Candidates are currently already filing and campaigning under the interim map. A stay would simply throw all of this into turmoil. 5 (Respondents Appendix, Exhibit 1, Declaration of Rep. Trey Martinez Fischer). CONCLUSION For the foregoing reasons, as well as those set forth in the briefing of the other Respondents, which are incorporated herein by reference, Mexican American Legislative Caucus (MALC), Perez et al., LULAC, and NAACP respectfully request that the Court deny the Emergency Application for Stay of Interlocutory Order Directing Implementation of Interim Texas House Redistricting Plan Pending Appeal to the United States Supreme Court. 5 The State also requests that the Court stay the primary elections for the Texas House. (Emergency Application p. 24). But this is not simply a request for a stay. It is requesting the court enjoin the currently scheduled primary elections from occurring. What the applicant would require in order to achieve the substantive relief that it seeks is an original writ of injunction, pursuant to the All-Writs Act, 28 U.S.C. 1651(a), and this Court's Rule Ohio Citizens for Responsible Energy, Inc. v. Nuclear Regulatory Comm n, 479 U.S. 1312, 1312 (1986) (Scalia, J., in chambers). A Circuit Justice s issuance of such a writ demands a significantly higher justification than simply the stay factors enumerated here. Id. The Circuit Justice's injunctive power is to be used sparingly and only in the most critical and exigent circumstances... and only where the legal rights at issue are indisputably clear. Id. (citations omitted). The State has made no attempt to satisfy this heightened burden and its request should be summarily denied. 20

27 DATED: December 1, 2011 Respectfully submitted, /s/ Jose Garza JOSE GARZA Counsel of Record, Respondent MALC Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, Texas DAVID RICHARDS Respondent Perez Richards, Rodriguez, & Skeith LLP 816 Congress Avenue, Suite 1200 Austin, Texas RICHARD GRAY Counsel Respondent Perez Gray & Becker, P.C. 900 West Avenue,Suite 300 Austin, TX (512) (512) (fax) JOAQUIN G. AVILA Counsel for Respondent MALC P.O. Box Seattle, WA (206) (206) (fax) PAMELA KARLAN Counsel for Respondent MALC Stanford Law School Supreme Court Litigation Clinic 559 Nathan Abbott Way Stanford, CA

28 ALLISON J. RIGGS (pro hac vice) ANITA S. EARLS Counsel for Respondent NAACP Southern Coalition for Social Justice 1415 W. Highway 54, Suite 101 Durham, NC (919) (phone) (919) (fax) ROBERT S. NOTZON Counsel for Respondent NAACP (D.C. Bar No. TX0020 ) Law Office of Robert S. Notzon 1507 Nueces Street Austin, Texas (512) (phone) (512) (fax) Robert@NotzonLaw.com GARY L. BLEDSOE Counsel for Respondent NAACP Law Office of Gary L. Bledsoe and Associates State Bar No West 12th Street, Suite 307 Austin, Texas Telephone: Fax: Garybledsoe@sbcglobal.net VICTOR GOODE Counsel for Respondent NAACP Assistant General Counsel NAACP 4805 Mt. Hope Drive Baltimore, MD Telephone: Fax: vgoode@naacpnet.org 22

29 23 LUIS ROBERTO VERA, JR. LULAC NATIONAL GENERAL COUNSEL Counsel for Respondent LULAC 1325 Riverview Towers 111 Soledad San Antonio, Texas (210)

30 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the Response In Opposition To Emergency Application For Stay Of Interlocutory Order Directing Implementation Of Interim Texas House Redistricting Plan Pending Appeal To The United States Supreme Court and the Appendix thereto have been served via electronic mail and two copies via overnight mail on December 1, 2011 on the following: PAUL D. CLEMENT Bancroft PLLC 1919 M Street. N.W., Suite 470 Washington, DC Telephone: (202) Facsimile: (202) pclement@bancroftpllc.com GREG ABBOTT Attorney General of Texas JONATHAN MITCHELL Solicitor General of Texas DAVID J. SCHENCK JAMES D. BLACKLOCK MATTHEW H. FREDERICK OFFICE OF THE ATTORNEY GENERAL P.O. Box (MC 059) Austin, Texas [Tel.] (512) [Fax] (512) david.schenck@oag.state.tx.us /s/ Jose Garza JOSE GARZA Counsel of Record Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, Texas