On Friday, intervenor groups in preclearance case in D.C. filed briefs asking the Supreme Court to dismiss the State of Texas’ appeal or, alternatively, to summarily affirm the decision of the district denying preclearance of the redistricting maps drawn by the Texas Legislature.
In a joint brief filed on behalf of 5 of 7 of the groups, the groups told the Supreme Court that “Texas arguments for plenary review are insubstantial” (i.e. not worthy of full briefing and oral argument).
The joint brief chided Texas for ignoring what the groups said was the “abundance of evidence” on discriminatory purpose, contending that:
Instead, Texas centers its argument on its concession that the legislature also engaged in political gerrymandering, and from this it concludes that no racial purpose was present. However, the district court fully considered and rejected the State’s argument that the legislature was solely motivated by partisan politics, and, contrary to what Texas suggests, racial and partisan motivations are not, as a matter of law, mutually exclusive. Texas also challenges the constitutionality of that part of Congress’ 2006 reauthorization of Section 5 which bars voting changes adopted with ‘any discriminatory purpose …’ But ‘[t]he constitutionality of section 5 was neither briefed nor argued’ to the district court and, accordingly the court ‘express[ed] no opinion on this significant point.’ Since ‘the question presented was not pressed or passed upon below,’ … Texas may not introduce it on appeal.
The brief also characterized Texas’ criticisms of the district court’s retrogression determinations as “quite limited” and said that the district court’s determinations had been based on a “standard methodology for assessing minority voters’ electoral opportunity.”
The Texas Latino Redistricting Task Force filed a separate brief echoing many of the arguments of other intervenor groups but suggesting to the court that “this case should be held pending disposition of Shelby Cnty, Ala. v. Holder.” The Latino Task Force told the court that, “[t]he decision in Shelby, regarding whether Congress’ decision in 2006 to reauthorize section 5 of the Voting Rights Act exceeeded its authority, will significantly affect this case.”
Here are copies of the briefs:
The Justice Department and the intervenor group that includes State Sen. Wendy Davis and State Rep. (and now Congressman-elect) Marc Veasey also filed separate briefs but their briefs were not available as of the time of this post.
Links to the Davis/Veasey brief and the DOJ brief are below.
In addressing claims about the state senate map, Davis and Veasey told the court that the State of Texas’ appeal with respect to the senate map was “simply an attempt to overturn this Court’s longstanding precedent governing private party intervention and discriminatory intent in cases under Section 5 of the Voting Rights Act” and that “[a]s such, it should be summarily rejected.
Davis and Veasey told the court the record at the district court strongly supported the conclusion that the Texas Legislature “deliberately dismantled” SD-10 “as soon as minority voters succeeded in actually electing their preferred candidate of choice in 2008,” explaining that in the state’s map:
First, the large African-American community in Southeast Fort Worth was extracted from Senate District 10 and moved into enacted Senate District 22, a 61.3% Anglo district that extends over 100 miles south into rural parts of Central Texas. At the same time, Texas fractured the Hispanic population in North Fort Worth into enacted Senate District 12, a largely suburban district with a 61% Anglo population. Only Fort Worth’s remaining Southside Hispanic population was left in enacted Senate District 10, which the State transformed into a 54.5% Anglo district.
Davis and Veasey also said that what happened in SD-10 precisely supported the continued need for section 5:
In this case, Section 5 did exactly what it was intended to do. Because Section 5 froze the status quo, benchmark Senate District 10 was preserved in the 2012 primaries and general election, affording minority voters the continued opportunity to elect their candidate of choice - Senator Davis - while the three-judge court in the Western District of Texas continued to work through the extensive record regarding violations of Section 2 and the Fourteenth Amendment. In the absence of Section 5, these minority voters almost certainly would have lost their opportunity to elect their candidate of choice in the 2012 elections, even though they would have ultimately prevailed in their constitutional claims.
In its brief, the Justice Department asks the Supreme Court to summarily affirm the three-judge panel’s ruling on the state house map and set questions about the congressional map for argument before the full court in light of a split in the panel about why the congressional plan was retrogressive. The department also suggested that the panel’s finding regarding the state senate map would benefit from being supplemented with additional facts from the evidentiary record and asked that the court return the senate case to the three-judge panel for that purpose.