Case 5:11-cv OLG-JES-XR Document 127 Filed 08/08/11 Page 1 of 15

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1 Case 5:11-cv OLG-JES-XR Document 127 Filed 08/08/11 Page 1 of 15 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION SHANNON PEREZ; HAROLD DUTTON, JR. GREGORY TAMEZ; SERGIO SALINAS; CARMEN RODRIGUEZ; RUDOLFO ORTIZ; NANCY HALL and DOROTHY DEBOSE Plaintiffs -and- EDDIE BERNICE JOHNSON; SHEILA JACKSON-LEE and ALEXANDER GREEN; MEMBERS OF THE UNITED STATES CONGRESS CIVIL ACTION NO. -and- 11-CA-360-OLG-JES-XR [Lead case] TEXAS LEGISLATIVE BLACK CAUCUS, TEXAS HOUSE OF REPRESENTATIVES -and- TEXAS STATE CONFERENCE OF NAACP BRANCHES; HOWARD JEFFERSON, JUANITA WALLACE and REV. BILL LAWSON Plaintiff-Intervenors v. STATE OF TEXAS; RICK PERRY, in his official capacity as Governor of the State of Texas; DAVID DEWHURST, in his official capacity as Lieutenant Governor of the State of Texas; JOE STRAUS, in his official capacity as Speaker of the Texas House of Representatives; HOPE ANDRADE, in her official capacity as of Secretary of State of the State of Texas Defendants

2 Case 5:11-cv OLG-JES-XR Document 127 Filed 08/08/11 Page 2 of 15 MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES (MALC Plaintiffs -and- THE HONORABLE HENRY CUELLAR, Member of Congress, CD 28; THE TEXAS DEMOCRATIC PARTY and BOYD RICHIE, in his official capacity as Chair of the Texas Democratic Party; and LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC and its individually named members Plaintiff-Intervenors CIVIL ACTION NO. v. SA OLG-JES-XR [Consolidated case] STATE OF TEXAS; RICK PERRY, in his official capacity as Governor of the State of Texas; DAVID DEWHURST, in his official capacity as Lieutenant Governor of the State of Texas; JOE STRAUS, in his official capacity as Speaker of the Texas House of Representatives Defendants TEXAS LATINO REDISTRICTING TASK FORCE, JOEY CARDENAS, ALEX JIMENEZ, EMELDA MENENDEZ, TOMACITA OLIVARES, JOSE OLIVARES, ALEJANDRO ORTIZ and REBECCA ORITIZ Plaintiffs CIVIL ACTION NO. SA-11-CA-490-OLG-JES-XR v. [Consolidated case] RICK PERRY, in his official capacity as Governor of the State of Texas Defendants 2

3 Case 5:11-cv OLG-JES-XR Document 127 Filed 08/08/11 Page 3 of 15 MARGARITA V. QUESADA; ROMEO MUNOZ; MARC VEASEY; JANE HAMILTON; LYMAN KING; JOHN JENKINS, DEBBIE ALLEN, SANDRA PUENTE, JAMAAL SMITH, KATHLEEN MARIA SHAW, Plaintiffs CIVIL ACTION NO. v. SA-11-CA-592-OLG-JES-XR [Consolidated case] RICK PERRY, in his official capacity as Governor of the State of Texas; and HOPE ANDRADE, in her official capacity as Secretary of the State of the State of Texas Defendants JOHN T. MORRIS Plaintiff CIVIL ACTION NO. v. SA-11-CA-615-OLG-JES-XR [Consolidated case] STATE OF TEXAS; RICK PERRY, in his official capacity as Governor of the State of Texas; DAVID DEWHURST, in his official capacity as Lieutenant Governor of the State of Texas; JOE STRAUS, in his official capacity as Speaker of the Texas House of Representatives; and HOPE ANDRADE, in her official capacity as Secretary of State of the State of Texas Defendants EDDIE RODRIGUEZ, MILTON GERARD WASHINGTON, BRUCE ELFANT, ALEX SERNA, SANDRA SERNA, BETTY F. LOPEZ, DAVID GONZALEZ, BEATRICE SALOMA, LIONOR SOROLA-POHLMAN; ELIZA ALVARADO; JUANITA VALDEZ-COX; JOSEY MARTINEZ; NINA JO BAKER; TRAVIS COUNTY and CITY OF AUSTIN 3

4 Case 5:11-cv OLG-JES-XR Document 127 Filed 08/08/11 Page 4 of 15 Plaintiffs CIVIL ACTION NO. v. SA-11-CA-635 [Consolidated case] RICK PERRY, in his official capacity as Governor of the State of Texas; DAVID DEWHURST, in his official capacity as Lieutenant Governor of the State of Texas; JOE STRAUS, in his official capacity as Speaker of the Texas House of Representatives; and HOPE ANDRADE, in her official capacity as Secretary of State of the State of Texas; STATE OF TEXAS; BOYD RICHIE, in his official capacity as Chair of the Texas Democratic Party; and STEVE MUNISTERI, in his official capacity as Chair of the Republican Party of Texas Defendants PARTIALLY UNOPPOSED QUESADA PLAINTIFFS MOTION TO STAY PROCEEDINGS AND/OR TO POSTPONE TRIAL DATE For reasons set forth below, Plaintiffs MARGARITA QUESADA, et al., respectfully move this Court to enter an order staying these proceedings and postponing the trial date to some future date to be set by the Court. At a minimum, this Court should postpone the trial date. As we explain below, there are strong reasons for the Court to grant this motion. The following parties DO NOT OPPOSE the relief sought by this motion: Plaintiffs SHANNON PEREZ, et al.; LATINO REDISTRICTING TASK FORCE, et al.; EDDIE RODRIGUEZ, et al.; Plaintiff LULAC; Plaintiff HENRY CUELLAR; Plaintiff- Intervenors NAACP and BLACK CONGRESSIONAL INTERVENORS, et al.; and Defendant TEXAS DEMOCRATIC PARTY. The only parties who expressly stated that they oppose this motion were the Defendants STATE OF TEXAS OFFICIALS and the Defendant STEVE MUNISTERI (although movants would note that the State and other 4

5 Case 5:11-cv OLG-JES-XR Document 127 Filed 08/08/11 Page 5 of 15 parties unsuccessfully jointly moved for a one week delay in the trial date just a week ago. As grounds for this motion, the QUESADA Plaintiffs would show that: 1. There are compelling reasons why this Court should postpone these proceedings and resume them upon a preclearance determination. First, it is axiomatic that this Court cannot address the merits of any of the statewide plans until preclearance is obtained. Connor v. Waller, 421 U.S. 656 (1975; Clark v. Roemer, 500 U.S. 646, (1991; and Lopez v. Monterey County, CA, 519 U.S. 9 ( Since the Voting Rights Act became law in 1965, numerous courts have stayed their hand and awaited the Section 5 preclearance determination before proceeding to take up liability issues. See, e.g., Upham v. Seamon, 456 U.S. 37, 38 (1982 ( A three-judge court was empaneled, held a hearing, and delayed any further action until after the Attorney General acted; Burton v. Hobbie, 543 F. Supp. 235 (M.D. Ala. 1982(Order of June 21, 1982 (three-judge court awaits preclearance determination by Attorney General before addressing plaintiffs claims; Goddard v. Babbitt, 536 F.Supp. 538, (D. Ariz.., 1982 (three-judge court awaits preclearance determination, holds pre-trial conference on day that DOJ interposes section 5 objection, and conducts trial two days later. 5

6 Case 5:11-cv OLG-JES-XR Document 127 Filed 08/08/11 Page 6 of There is good reason for this delayed action: the Supreme Court has repeatedly made clear that federal courts should not consider the legality of plans that have not been precleared. See supra. 4. Section 5 of the VRA was designed by Congress to put the burden of time and inertia on the perpetrators of discrimination, and not on the victims. South Carolina v. Katzenbach, 383 U.S. 301 (1966. In the preclearance process, the State has the burden of proof to show the absence of a racially discriminatory purpose and a retrogressive effect. South Carolina v. Katzenbach, supra. The Court explained, The very effect of 5 was to shift the burden of proof with respect to racial discrimination in voting. Rather than requiring affected parties to bring suit to challenge every changed voting practice, States subject to 5 were required to obtain prior clearance before proposed changes could be put into effect. The burden of proof is on the areas seeking relief. Id. at 335; see also Georgia v. Ashcroft. Putting the plaintiffs through the burdens of extremely accelerated discovery 1 and a trial in this case before those plans have been precleared is inconsistent with these wellestablished legal precedents, as well as the overarching goals of the Voting Rights Act. 5. Equally important is the fact that the districts that are the focus of the Section 5 preclearance cases in the D.C. Court are the same ones at 1 The QUESADA plaintiffs filed their complaint on July 15, Under the abbreviated and accelerated discovery schedule in these consolidated cases, the Quesada plaintiffs have to have all discovery completed within less than thirty (30 days of filing their complaint, and a trial less than sixty (60 days of filing the complaint. 6

7 Case 5:11-cv OLG-JES-XR Document 127 Filed 08/08/11 Page 7 of 15 issue in this Court. To use one example from the Congressional map, plaintiffs in these consolidated cases have claimed that the State of Texas changed Congressional District 23 from an effective Latino opportunity district to one that no longer affords Latino voters with an effective opportunity to elect their preferred candidate of choice. That issue is also before the D.C. Court, which will examine whether changes made to CD 23 (and other districts that are the subject of these consolidated cases retrogress the ability of Latino and African American voters to elect their preferred candidate to office. Indeed, numerous other districts in the statewide plans being challenged in this Court are at issue in the D.C. case and that Court will assess their legality under Section 5 of the VRA. 6. Having an extremely abbreviated discovery schedule and conducting a trial in early September on redistricting plans that will either never become effective as law or, if precleared will not become effective as law until nearly three months from now, makes little sense. If the Section 5 process results in a denial of preclearance in the D.C. Court for any of the statewide plans or the districts in those plans, then this Court will conduct hearings to remedy the objectionable features of the statewide maps found by the D.C. Court. See Upham v. Seamon, supra. If trial is held in early September in this Court, and the D.C. Court later denies preclearance to parts of the map, then the evidence that the parties would present at trial in this Court regarding the 7

8 Case 5:11-cv OLG-JES-XR Document 127 Filed 08/08/11 Page 8 of 15 effectiveness or viability of such districts for minority voters effectively would be rendered irrelevant and moot, because the issues that would be before this Court would involve the appropriate remedy. It makes little sense to put this Court and the parties through the time and expense of a liability trial for redistricting plans and districts that ultimately may be denied preclearance. That is especially true since this Court will be called upon later to remedy the illegality in those plans if preclearance is denied. Put another way, this Court and the parties should not use precious resources to present evidence on whether redistricting plans or minority opportunity districts dilute the voting strength of racial and language minorities when those plans or districts may never be effective at law if preclearance is denied. 7. Counsel for the Quesada plaintiffs has deep appreciation for this Court wanting to put itself in a position to consider all the claims in these cases and to render a timely ruling. That goal is a worthy one, but it can be accomplished far more efficiently by staying the scheduled deadlines in these proceedings until the preclearance determination is made and then fast-tracking these proceedings in light of that decision. Indeed, this is precisely what other Section 5 courts have done. See, e.g., Upham v. Seamon, supra and Goddard v. Babbitt, supra. 8. If the preclearance process is permitted to run its course before this Court proceeds to trial, the issues before this Court will be considerably narrowed. For example, if the D.C. Court determines that the State of 8

9 Case 5:11-cv OLG-JES-XR Document 127 Filed 08/08/11 Page 9 of 15 Texas is unable to prove that any of their plans are free of a racially discriminatory purpose, then that entire plan is legally unenforceable and this Court cannot review the merits of any such plan or the districts within them. If the D.C. Court finds that the State of Texas sustains its burden of proof regarding racial purpose but is unable to establish the absence of a retrogressive effect, then this Court would not review such districts under Section 2 but would instead remedy the objectionable features of the maps under Section 5. See Upham v. Seamon, supra. 9. Furthermore, given the efforts of the parties to date, this Court will be able to deal with any remaining issues in a timely and more orderly fashion after preclearance. The parties in this case have already expended considerable time and resources, and the abbreviated discovery process is about to end. Expert witness reports, exhibit lists, and witness lists are being exchanged and filed today. In light of the Court s and parties efforts to date, this Court should easily be able to resume proceedings, take up any Section 5 remedy issues, and schedule a trial on any remaining issues once the D.C. Court acts. Any supplemental analysis that needs to be done based on the Section 5 preclearance decision could be completed in short order. The current posture of this case, therefore, considered in light of the likely timing of the D.C. Court s preclearance determination in either late October or early November at the earliest, suggests that the better course of action 9

10 Case 5:11-cv OLG-JES-XR Document 127 Filed 08/08/11 Page 10 of 15 would be for this Court to stay its hand and await that Section 5 determination. 10. Proceeding in this fashion would also permit the plaintiffs in these consolidated cases, who unlike the State of Texas have limited financial resources and counsel, to participate fully and effectively in the D.C. Court case and develop their case on why preclearance should be denied. To give the Court some idea of the nature and extent of the resources that will be expended in the next few weeks in this case (absent a stay, we would note the following. In the course of the next two weeks, the State of Texas has scheduled two dozen depositions of the various plaintiffs and there will be an estimated twelve or more depositions of expert witnessed during this period. In addition, on August 4, the State Defendants served 53 sets of requests for admissions (and an additional number of interrogatories on the collective plaintiffs in these consolidated cases. 11. State Defendants also bear some responsibility for creating some exigency here. After all, the State failed to enact a congressional redistricting plan during the regular session, despite having the 2010 census data for at least three months. After the Texas Legislature finally enacted a congressional plan during the special session, the defendant Governor did not promptly sign the congressional plan but waited instead until July19, Although the Texas Legislature had enacted its redistricting plans for the State House, State Senate, and 10

11 Case 5:11-cv OLG-JES-XR Document 127 Filed 08/08/11 Page 11 of 15 State Board of Education in May, state authorities chose to delay seeking preclearance of all those plans until after the Governor signed the congressional map in mid-july. 12. State Defendants have made no effort to expedite the Section 5 preclearance process. First, the Governor delayed signing the congressional map and the State failed to seek Section 5 preclearance until July 21, Second, rather than choose the more rapid method of obtaining Section 5 review, the State of Texas sought judicial preclearance from the D.C. Court rather than administrative preclearance from the United States Attorney General. The Supreme Court has emphasized that the most expeditious method of seeking preclearance is this administrative process. McCain v. Lybrand, 465 U.S. 236, 247 (1984; see also Morris v. Gressette, 432 U.S. 491, 504 (1977 (explaining that the legislative history shows that the administrative process was meant to offer a speedy alternative to declaratory judgment actions. Third, the State Defendants have made no effort to expedite the preclearance process in the D.C. court: they neither moved for the three-judge court to expedite its handling of the case; nor did they seek to shorten the time for the United States Attorney General to answer the complaint Given the schedule set in numerous other past Section 5 preclearance cases in the D.C. Court, and based on discussions that reportedly have 2 The Quesada Plaintiffs have moved to intervene in the D.C. Court, which the State of Texas has opposed. That motion is pending. 11

12 Case 5:11-cv OLG-JES-XR Document 127 Filed 08/08/11 Page 12 of 15 occurred between counsel for the State of Texas and counsel for the Department of Justice ( DOJ, it appears that a Section 5 determination in the D.C. Court will not occur until late October or early November 2011, at the earliest. The State has reportedly informed DOJ that its goal is to obtain a Section 5 determination from the D.C. Court before the candidate qualifying date occurs in mid- November With a Section 5 preclearance determination by the D.C. Court likely three months away, rushing now to complete discovery and a trial in this Court on issues that may never need to be adjudicated will accomplish one goal and little else: needlessly consuming the limited, precious time and resources of this Court and those who have brought these cases. We respectfully submit that a stay of proceedings is proper. At a minimum, the trial should be postponed. A proposed Order is submitted for the Court s consideration. Certificate of Conference As noted above, movants counsel contacted counsel for all parties regarding the relief sought by this motion. The following parties do not oppose or concur in the relief sought by this motion: Plaintiffs SHANNON PEREZ, et al.; LATINO REDISTRICTING TASK FORCE, et al.; EDDIE RODRIGUEZ, et al.; Plaintiff LULAC; Plaintiff HENRY CUELLAR; Plaintiff-Intervenors NAACP and BLACK CONGRESSIONAL INTERVENORS, et al.; and Defendant TEXAS DEMOCRATIC PARTY. The only parties who expressly stated that they oppose this motion were the 12

13 Case 5:11-cv OLG-JES-XR Document 127 Filed 08/08/11 Page 13 of 15 Defendants STATE OF TEXAS OFFICIALS and the Defendant STEVE MUNISTERI (although movants would note that the State and other parties unsuccessfully jointly moved for a one week delay in the trial date just a week ago. The remaining parties failed to respond to movants counsel or took no position on the motion.. WHEREFORE, plaintiffs MARGARITA QUESADA, et al. respectfully pray that this motion be granted and the attached order be entered. This 8th day of August,

14 Case 5:11-cv OLG-JES-XR Document 127 Filed 08/08/11 Page 14 of 15 Respectfully submitted, GERALD H. GOLDSTEIN Goldstein, Goldstein and Hilley 310 S. St. Mary s Street 29th Floor Tower Life Bldg. San Antonio, Texas Phone: ( Fax: ( /s/ J. Gerald Hebert J. GERALD HEBERT D.C. Bar # Attorney at Law 191 Somerville Street, #405 Alexandria, VA Telephone: hebert@voterlaw.com PAUL M. SMITH D.C. Bar # MICHAEL B. DESANCTIS D.C. Bar # JESSICA RING AMUNSON D.C. Bar # CAROLINE D. LOPEZ D.C. Bar # Jenner & Block LLP 1099 New York Ave., N.W. Washington, D.C Tel: ( Fax: ( JESSE GAINES TX Bar No PO Box Ft Worth, TX ( Attorneys for QUESADA Plaintiffs CERTIFICATE OF SERVICE 14

15 Case 5:11-cv OLG-JES-XR Document 127 Filed 08/08/11 Page 15 of 15 I hereby certify that on this 8 th day of August, 2011, I served a copy of the foregoing Motion for A Stay of Proceedings And to Postpone Trial on counsel who are registered to receive NEFs through the CM/ECF system. All attorneys who have not yet registered to receive NEFs have been served via first-class mail, postage prepaid and addressed as follows: David Escamilla Travis County Asst. Attorney P.O. Box 1748 Austin, TX Joaquin Guadalupe Avila P.O. Box Seattle, WA John K. Tanner John Tanner Law Office 3743 Military Rd. NW Washington, DC Karen M. Kennard City of Austin Law Department PO Box 1088 Austin, TX /s/ J. Gerald Hebert J. Gerald Hebert 15