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Abstract

Excerpted from: Greg Abbott, Governor of Texas, et Al., V. Shannon Perez, et Al.greg Abbott, Governor of Texas, et Al., Appellants, 138 S.Ct. 2305, Nos. 17–586, 17–626, Argued April 24, 2018. Decided June 25, 2018. (Footnotes) (Full Document)

Voters, state and federal legislators, and voting rights organizations brought actions alleging that Texas's redistricting plans for United States House of Representatives, Texas House of Representatives, and Texas Senate violated Constitution and Voting Rights Act (VRA). After the District Court issued interim redistricting plans, the Texas Legislature adopted court's interim plans without change, the cases were consolidated, and bench trial was held. A three-judge panel of the United States District Court for the Western District of Texas, Xavier Rodriguez, J., 267 F.Supp.3d 750, 274 F.Supp.3d 624, entered orders barring Texas from using districting plans in effect to conduct the current year's elections, and appeal was taken.

 

Holdings: The Supreme Court, Justice Alito, held that:

[1] orders were effectively injunctions and thus were appealable to the Supreme Court;
[2] District Court disregarded presumption of legislative good faith and improperly reversed burden of proof;
[3] evidence was insufficient to establish that the Texas Legislature acted in bad faith and engaged in intentional discrimination when it adopted interim redistricting plan approved by the district court;
[4] one congressional district did not violate VRA;
[5] two Texas House districts making up entirety of one Texas county did not violate VRA; and
[6] Texas House district created by moving Latinos into the district to bring the Latino population above 50% was an impermissible racial gerrymander.

Affirmed in part, reversed in part, and remanded.

Justice Thomas filed a concurring opinion in which Justice Gorsuch joined.
Justice Sotomayor filed a dissenting opinion in which Justices Ginsburg, Breyer, and Kagan joined.


The Equal Protection Clause forbids “racial gerrymandering,” that is, intentionally assigning citizens to a congressional district on the basis of race without sufficient justification. U.S.C.A. Const.Amend. 14.

The Equal Protection Clause prohibits intentional “vote dilution” — invidiously minimizing or canceling out the voting potential of racial or ethnic minorities. U.S.C.A. Const.Amend. 14.

The Voting Rights Act (VRA) provision prohibiting districting plans that provide less opportunity for racial minorities to elect representatives of their choice means that, under certain circumstance, States must draw “opportunity” districts in which minority groups form effective majorities. 52 U.S.C.A. § 10301.

Since the Equal Protection Clause restricts consideration of race and the Voting Rights Act (VRA) demands consideration of race, a legislature attempting to produce a lawful districting plan is vulnerable to competing hazards of liability. U.S.C.A. Const.Amend. 14; Voting Rights Act of 1965, § 2, 52 U.S.C.A. § 10301.

Orders of a three-judge district court barring Texas from using districting plans in effect to conduct current year's elections were effectively injunctions and thus were appealable to the Supreme Court; although the district court did not call the orders “injunctions,” the orders were unequivocal that the current legislative plans violated the Fourteenth Amendment and that those violations had to be remedied before the current year's elections. U.S.C.A. Const.Amend. 14; 28 U.S.C.A. § 1253.

Whenever a challenger claims that a state law was enacted with discriminatory intent, the burden of proof lies with the challenger, not the State

The ultimate question in an action challenging a districting plan remains whether a discriminatory intent has been proved in a given case; the historical background of a legislative enactment is one evidentiary source relevant to the question of intent, but past discrimination does not flip the evidentiary burden on its head.

While a district court's finding of fact on the question of discriminatory intent in an action challenging a districting plan is reviewed for clear error, whether the court applied the correct burden of proof is a question of law subject to plenary review.

When a finding of fact is based on the application of an incorrect burden of proof, the finding cannot stand.

Both intent of prior Legislature and district court's adoption of interim redistricting plans were relevant in action challenging later plans under the Voting Rights Act (VRA) to extent that they naturally gave rise to—or tended to refute—inferences regarding intent of subsequent Legislature that adopted the challenged plan; they had to be weighed together with any other direct and circumstantial evidence of that Legislature's intent. Voting Rights Act of 1965, § 2, 52 U.S.C.A. § 10301.

Evidence in action under the Voting Rights Act (VRA) was insufficient to establish that the Texas Legislature acted in bad faith and engaged in intentional discrimination when it adopted interim congressional redistricting plan approved by the district court; direct evidence indicated the Legislature adopted interim plans in order to bring litigation about the plans to an end as expeditiously as possible, Legislature had good reason to believe that the interim plans were legally sound, and there was no evidence that its aim was to gain acceptance of plans that it knew were unlawful. Voting Rights Act of 1965, § 2, 52 U.S.C.A. § 10301.

The burden of proof in a preclearance proceeding under the Voting Rights Act (VRA) was on the State. Voting Rights Act of 1965, § 3, 52 U.S.C.A. § 10302©.

Bad faith could not be inferred in Voting Rights Act (VRA) action challenging Texas's congressional redistricting plan from Texas's decision to take an appeal to the Supreme Court from a district court's decision denying preclearance, absent showing that Texas's arguments on appeal were frivolous. Voting Rights Act of 1965, § 3, 52 U.S.C.A. § 10302c

To make out an “effects” claim under Voting Rights Act (VRA) provision prohibiting districting plans that provide less opportunity for racial minorities to elect representatives of their choice, a plaintiff must establish the three “Gingles factors”: (1) a geographically compact minority population sufficient to constitute a majority in a single-member district, (2) political cohesion among the members of the minority group, and (3) bloc voting by the majority to defeat the minority's preferred candidate. Voting Rights Act of 1965, § 2, 52 U.S.C.A. § 10301.

If a plaintiff in an action under the Voting Rights Act (VRA) provision prohibiting districting plans that provide less opportunity for racial minorities to elect representatives of their choice makes the required showing under the “Gingles factors,” it must then go on to prove that, under the totality of the circumstances, the district lines dilute the votes of the members of the minority group. Voting Rights Act of 1965, § 2, 52 U.S.C.A. § 10301.

Texas congressional district did not violate Voting Rights Act (VRA) provision prohibiting districting plans that provide less opportunity for racial minorities to elect representatives of their choice because it had a nearly one-third Latino population but was not made a Latino opportunity district; geography and demographics of south and west Texas did not permit the creation of any more than the seven Latino opportunity districts that existed under the current plan, and the Legislature justifiably thought that it had placed a viable opportunity district in the same area. Voting Rights Act of 1965, § 2, 52 U.S.C.A. § 10301.

Redistricting analysis in a Voting Rights Act (VRA) action must take place at the district level. Voting Rights Act of 1965, § 2, 52 U.S.C.A. § 10301.

Two Texas House districts making up entirety of one Texas county did not violate Voting Rights Act (VRA) provision prohibiting districting plans that provide less opportunity for racial minorities to elect representatives of their choice, although Latinos made up approximately 56% of the voting age population of the county, but only one of the districts was a Latino opportunity district, where two performing Latino districts could not have been created without “breaking the county line” in violation of the Texas Constitution. Voting Rights Act of 1965, § 2, 52 U.S.C.A. § 10301; Vernon's Ann.Texas Const. Art. 3, § 26.

Texas House district created by moving Latinos into the district to bring the Latino population above 50% was an impermissible racial gerrymander in violation of the Voting Rights Act (VRA) provision prohibiting districting plans that provide less opportunity for racial minorities to elect representatives of their choice; race was predominant factor in design of the district, and although one advocacy group demanded that design and previous primary elections had not favored the Latino candidate of choice, Texas pointed to no actual legislative inquiry that would establish need for its manipulation of the district's racial makeup. Voting Rights Act of 1965, § 2, 52 U.S.C.A. § 10301.

No. 17–586, 274 F.Supp.3d 624, reversed; No. 17–626, 267 F.Supp.3d 750, reversed in part and affirmed in part; and cases remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C.J., and KENNEDY, THOMAS, and GORSUCH, JJ., joined. THOMAS, J., filed a concurring opinion, in which GORSUCH, J., joined. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, BREYER, and KAGAN, JJ., joined.


Justice THOMAS, with whom Justice GORSUCH joins, concurring.

I adhere to my view that § 2 of the Voting Rights Act of 1965 does not apply to redistricting. Thus, § 2 cannot provide a basis for invalidating any district, and it cannot provide a justification for the racial gerrymander in House District 90. Because the Court correctly applies our precedents and reaches the same conclusion, I join its opinion in full.

 


Justice SOTOMAYOR, with whom Justice GINSBURG, Justice BREYER, and Justice KAGAN join, dissenting.

The Court today goes out of its way to permit the State of Texas to use maps that the three-judge District Court unanimously found were adopted for the purpose of preserving the racial discrimination that tainted its previous maps. In reaching its desired result, the majority commits three fundamental errors along the way.

First, the majority disregards the strict limits of our appellate jurisdiction and reads into the District Court orders a nonexistent injunction to justify its premature intervention. Second, the majority indulges Texas' distorted reading of the District Court's meticulous orders, mistakenly faulting the court for supposedly shifting the burden of proof to the State to show that it cured the taint of past discrimination, all the while ignoring the clear language and unambiguous factual findings of the orders below. Third, the majority elides the standard of review that guides our resolution of the factual disputes in these appeals—indeed, mentioning it only in passing—and selectively parses through the facts. As a result of these errors, Texas is guaranteed continued use of much of its discriminatory maps.

This disregard of both precedent and fact comes at serious costs to our democracy. It means that, after years of litigation and undeniable proof of intentional discrimination, minority voters in Texas—despite constituting a majority of the population within the State—will continue to be underrepresented in the political process. Those voters must return to the polls in 2018 and 2020 with the knowledge that their ability to exercise meaningfully their right to vote has been burdened by the manipulation of district lines specifically designed to target their communities and minimize their political will. The fundamental right to vote is too precious to be disregarded in this manner. I dissent.

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