Case 5:11-cv OLG-JES-XR Document 170 Filed 03/22/13 Page 1 of 8

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1 Case 5:11-cv OLG-JES-XR Document 170 Filed 03/22/13 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION WENDY DAVIS, MARK VEASEY, et al., Plaintiffs, CIVIL ACTION NO. v. SA-11-CA-788-OLG-JES-XR [Lead Case] RICK PERRY, et al., Defendants. LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC), et al., Plaintiffs, CIVIL ACTION NO. v. SA-11-CA-855-OLG-JES-XR [Consolidated Case] RICK PERRY, et al., Defendants. DAVIS-VEASEY AND LULAC PLAINTIFFS JOINT ADVISORY TO THE COURT On February 11, 2013, this Court issued an order seeking the parties written advisories on how to prepare for events that may follow later this year[.] (Dkt. # 731). That Order also posed a series of questions regarding how the Court might proceed given the various scenarios that might exist once the United States Supreme Court decides the pending Shelby County, Alabama, v. Holder case, and/or resolves the pending appeal by the State of Texas of the D.C. Court s redistricting decision denying preclearance to the state Senate, House, and Congressional redistricting plans. With respect to the Plaintiffs challenge to the Senate case, the Court posed 1

2 Case 5:11-cv OLG-JES-XR Document 170 Filed 03/22/13 Page 2 of 8 the following specific question: Do the parties to the Senate case anticipate that their case may be resolved more expediently given the limited issues therein? 1 Although the Senate case only involves a challenge to the State s intentional destruction of one effective minority coalition district (Senate District 10), the legal posture of the Senate case is not significantly different from the pending challenges to the House and Congressional plans. The Plaintiffs challenge to the State s proposed Senate plan (S148) remains live. Plaintiffs do believe that the case can be resolved more expediently than the Congressional and House cases because Plaintiffs and Defendants have already agreed with this Court on the proper remedy for the one-person, one vote and Section 5 violations, and that plan was implemented in the 2012 elections. What makes the Senate case different from the Congressional and House cases is that there is no claim by Plaintiffs that the interim plan for the state Senate violates the Voting Rights Act or the United States Constitution. Indeed, both Plaintiffs and Defendants in the Senate case have previously filed Advisories with this Court in which they agree that SD 10 as drawn in the interim plan does not violate the Voting Rights Act and may become a final plan for purposes of the Senate case. In its December 3, 2012 Advisory filed with this Court, the Defendants Rick Perry, et al., took the position that the court-ordered interim plan addresses the alleged legal defect that the D.C. Court found in Plan S148. Perry Advisory at 9 (Dkt. # 163). Plaintiffs December 3 rd Advisory stated that the plan imposed by this Court earlier this year can serve as a 1 The Davis-Veasey and LULAC Plaintiffs hereby incorporate by reference the arguments and points in the Advisory on Future Proceedings being filed today by the Plaintiffs Perez, Rodriquez, the NAACP, LULAC, and Quesada. That Advisory addresses a number of questions raised by the Court which we do not address here in the interest of avoiding duplication. This Advisory by the Davis-Veasey and LULAC Plaintiffs address only those issues unique to the Senate case. 2

3 Case 5:11-cv OLG-JES-XR Document 170 Filed 03/22/13 Page 3 of 8 remedial state senate plan for the State of Texas [and that] this Court should adopt the interim plan as the Court s final remedial plan at this time. (Dkt. #162)(footnote omitted). These Advisories are consistent with this Court s March 19, 2012 Memorandum Opinion, in which the Court found that the interim plan reflects changes to the legislatively enacted Texas Senate plan that are appropriately designed to address Plaintiffs not insubstantial claim that SD 10 reflects a prohibited purpose under Section 5 of the Voting Rights Act [and] remedies the unconstitutional malapportionment of the state senate districts. Memorandum Opinion at 2 (Dkt. # 147). 2 The positions of the parties to the Senate case with respect to the interim plan stand in contrast to the position of parties in the House and Congressional case. In the latter cases, nearly all of the Plaintiffs contend the interim plans do not fully comply with the Voting Rights Act. Since the filing of the written advisories last December, there have been two significant developments that affect the Senate case in particular. First, earlier this year, members of the Senate drew lots for terms of office, with some senators drawing two-year terms and others fouryear terms. The drawing for terms of office in the senate was widely reported in the media. Thus, some senators are currently preparing to run in their current districts next year and prospective challengers to those incumbent senators are likely preparing to run next year as well. Members who have drawn four year terms are, of course, not anticipating the need to prepare for elections in Potential candidates in districts with a four-year terms also will not be 2 The Court further observed in its Memorandum Opinion: that 27 of the 31 districts in the proposed interim plan are identical to those in the State s enacted plan (S148). Thus, the proposed interim plan respects the State s enacted plan while not incorporating into it those aspects as to which there is, in this Court s view, a reasonable probability that Section 5 preclearance will not be forthcoming. The proposed interim plan makes changes to SD 10 by restoring that district to its benchmark configuration and by redrawing only three adjacent senate districts as required to comply with one-person, one-vote principles and to accommodate the changes with respect to SD 10. Memorandum Opinion at 2-3 (Dkt. #147). 3

4 Case 5:11-cv OLG-JES-XR Document 170 Filed 03/22/13 Page 4 of 8 preparing to run in Moreover, Texas voters who reside in senate districts where senators drew a four-year term are anticipating that they will not be voting for Texas senate candidates in 2014, while voters in senate districts with a two-year term are expecting to vote next year for senate candidates. Given the actions of the Senate to draw lots for terms of office and the reasonable anticipation of candidates and voters, this Court is in a position to promote stability and certainty into future senate elections by ordering the interim Senate map (S 172) as the final remedial map. 3 The second development that has recently occurred is that on March 8, 2013, a redistricting bill (SB 1524) for the Texas Senate (and the State House and Congress) was introduced in the Texas Senate. 4 (An identical bill has been introduced in the House). 5 Section 2 of SB 1524 relates to the state Senate districts and provides that: The interim redistricting plan used to elect members of the Texas Senate in 2012 ordered by the United States District Court for the Western District of Texas on February 28, 2012, in the case of Davis, et al. v. Perry, et al. (No. SA-11-CV- 788), and identified as PLANS172 on the redistricting computer system operated by the Texas Legislative Council, is hereby ratified and adopted as the permanent plan for districts used to elect members of the Texas Senate. SB 1524 also contains a finding by the Texas Legislature that the district court's interim plans comply with all federal and state constitutional provisions or laws applicable to redistricting plans, including the federal Voting Rights Act[.] Section 4 at (2). SB 1524 also provides 3 The order should also set a briefing schedule on Plaintiffs motions for an award of attorneys fees, expenses and costs. 4 SB 1524 is attached as Exhibit A and may be found here: The bill adopts as final permanent redistricting plans for the Senate, House and Congress the interim plans imposed by this Court in The House bill is HB 3840 and may be found here: 4

5 Case 5:11-cv OLG-JES-XR Document 170 Filed 03/22/13 Page 5 of 8 that the adoption of the district court s interim plans as permanent plans by the Texas Legislature will: SB 1524 at Section 4 at (3)(A-C). (A) diminish the expense of further time and money by all parties in Texas ongoing redistricting litigation; (B) avoid disruption of the upcoming election cycle; and (C) provide certainty and continuity to the citizens of Texas regarding the districts used to elect members of the legislature and the United States House of Representatives from Texas. This legislative development confirms Plaintiffs view that the adoption of the interim plan as the permanent plan by this Court would be in the public interest in that it would avoid disruption in the upcoming election cycle, and would provide stability and certainty for Texas voters with regard to future elections for the state Senate. While ratification of the interim plans as permanent plans by the Texas Legislature is not a precondition to this Court s adoption of the interim plan as the permanent plan, legislative ratification would add an additional layer of certainty and stability in the upcoming election cycle with respect to future state Senate elections. Plaintiffs are hopeful that this legislation will go into effect and that this Court s further remedial action will not be necessary. However, in its December 3 rd filing with this Court, the State told this Court that it intends to implement its enacted plans if it obtains a favorable ruling from the Supreme Court in its appeal, or if the Supreme Court strikes down Section 5 of the Voting Rights Act in the pending Shelby County v. Holder case. See State s Advisory at p. 2 (Dkt. # 163) (If the Supreme Court holds in the pending Shelby County case that the 2006 reauthorization of the Voting Rights Act is unconstitutional, Texas legislatively enacted redistricting plans would be legally effective. ). Based on this filing, it appears that if Texas obtains a favorable ruling in its appeal of the D.C. Court s redistricting decision, or the Supreme 5

6 Case 5:11-cv OLG-JES-XR Document 170 Filed 03/22/13 Page 6 of 8 Court strikes down the preclearance provisions of the Voting Rights Act, Texas will attempt to impose its racially discriminatory 2011 Senate redistricting plan (S148) on Texas voters in future elections. Plaintiffs here will vigorously oppose such efforts, and this Court would then be required to address the legality of the State s plans under Section 2 and the United States Constitution. Before entering a decision on those claims, however, Plaintiffs would ask this Court to hold a limited evidentiary hearing to update and supplement the record with additional evidence from the 2012 election cycle. At such a hearing, Plaintiffs intend to offer for receipt into evidence the entire record from the D.C. Court case. As this Court was advised by Plaintiffs in their December 3 rd Advisory, Latino and black voters in 2012 once again (as they had done in 2008) formed an effective voting coalition and elected the candidate of their choice (Senator Wendy Davis) to the state Senate. Plaintiffs would offer evidence regarding the 2012 elections and urge this Court to enter a judgment that the State s 2011 plan (S148) violates both Section 2 and the United States Constitution. In that regard, the findings of fact of the D.C. Court are final and binding with respect to the discriminatory purpose behind Plan S148, and the State Defendants are estopped from attacking those findings. On the other hand, if the Supreme Court does not declare provisions of the Voting Rights Act unconstitutional in the Shelby County case, and affirms the judgment of the D.C. Court in the Texas redistricting case, then this Court need not proceed with adjudicating Plaintiffs Section 2 or constitutional claims because the State s plan, lacking preclearance, would be null and void. Connor v. Waller, 421 U.S. 656 (1971) (per curiam). As Plaintiffs stated in our December 3 rd Advisory, [i]f Texas is unsuccessful in its pending appeal and the Court in the Shelby County case leaves Section 5 intact, this Court would not have to adjudicate whether Plan S148 meets 6

7 Case 5:11-cv OLG-JES-XR Document 170 Filed 03/22/13 Page 7 of 8 the requirements of Section 2 and whether that plan was enacted with a racially discriminatory purpose in violation of the United States Constitution. In those circumstances, the interim plan could become the final remedial plan for the state Senate. If, however, Section 5 is declared unconstitutional in the Shelby County case or Texas prevails in the Supreme Court on the merits of its appeal from the D.C. Court s decision, then this Court must proceed to adjudicate the pending Section 2 and constitutional claims in this case (following an evidentiary hearing as described above). CONCLUSION For the reasons set forth above and in our December 3, 2012 Advisory, this Court should enter an order adopting the interim plan (S172) as the permanent plan. Doing so now would bring stability and certainty to future senate elections and be in the best interests of Texas voters. As noted above, such an order also should contain a briefing schedule for Plaintiffs motions for attorneys fees, expenses, and costs. Alternatively, since this Court has stated in its recent order that it will not take any actions in this case until after the Supreme Court decision in the Shelby County and Texas redistricting cases, the Court appears poised to await the ruling of the Supreme Court in the Shelby County and Texas redistricting cases, and schedule further proceedings in light of those rulings as appropriate and as described above. 7

8 Case 5:11-cv OLG-JES-XR Document 170 Filed 03/22/13 Page 8 of 8 Respectfully submitted, /s/ Luis Roberto Vera, Jr. LUIS ROBERTO VERA, JR. League of United Latin American Citizens 111 Soledad St., Suite 1325 San Antonio, TX Counsel for LULAC plaintiffs DAVID RICHARDS State Bar No Richards, Rodriquez and Skeith, LLP 816 Congress Avenue, Suite 1200 Austin, TX Tel (512) Fax (512) /s/ J. Gerald Hebert J. GERALD HEBERT D.C. Bar # Attorney at Law 191 Somerville Street, #405 Alexandria, VA Telephone: Counsel for Davis-Veasey Plaintiffs CERTIFICATE OF SERVICE I hereby certify that on this 22nd day of March 2013, I filed and served the foregoing Joint Advisory by filing the same in this Court s ECF system, which caused copies of this document to be sent to counsel of record in this litigation. Those attorneys not registered with the ECF system were served by first-class mail, postage prepaid. /s/ J. Gerald Hebert J. GERALD HEBERT 8