SUPREME COURT OF THE UNITED STATES
_________________
Nos. 17–586 and 17–626
_________________
GREG ABBOTT, GOVERNOR OF TEXAS, ET AL.,
APPELLANTS
17–586
v.
SHANNON PEREZ, ET AL.
GREG ABBOTT, GOVERNOR OF TEXAS, ET AL.,
APPELLANTS
17–626
v.
SHANNON PEREZ, ET AL.
on appeals from the united states district
court for the western district of texas
[June 25, 2018]
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.
I
A
The first obstacle the majority faces in its
quest to intervene in these cases is jurisdictional. The statute
that governs our jurisdiction over these appeals is 28
U. S. C. §1253, which provides that “any party may appeal
to the Supreme Court from an order granting or denying
. . . an interlocutory or permanent injunction in any
civil action, suit or proceeding required by any Act of Congress to
be heard and determined by a district court of three judges.”
Unlike the more typical certiorari process, for cases falling
within §1253, appellate review in this Court is mandatory. That is
why, until today, this Court has repeatedly recognized and adhered
to a “long-established rule” requiring “strict construction” of
this jurisdictional statute “to protect our appellate docket.”
Stainback v.
Mo Hock Ke Lok Po, 336 U. S. 368,
375, 378 (1949); see,
e.g., Gonzalez v.
Automatic
Employees Credit Union, 419 U. S. 90, 98 (1974) (noting
that “only a narrow construction” of our jurisdiction under §1253
“is consonant with the overriding policy, historically encouraged
by Congress, of minimizing the mandatory docket of this Court in
the interests of sound judicial administration”);
Gunn v.
University Comm. to End War in Viet Nam, 399 U. S. 383,
387 (1970) (similar);
Goldstein v.
Cox, 396
U. S. 471, 477–478 (1970) (rejecting a construction of §1253
that would “involve an expansion of [our] mandatory appellate
jurisdiction,” even where the statutory text “is subject to [that]
construction,” in light of “canon of construction” requiring that
§1253 be “narrowly construed”);
Phillips v.
United
States, 312 U. S. 246, 248–250 (1941) (explaining that
§1253 is an “exceptional procedure” and that “inasmuch as this
procedure . . . brings direct review of a district court
to this Court, any loose construction . . . would defeat
the purposes of Congress . . . to keep within narrow
confines our appellate docket”).
In line with that command, this Court has held
that a ruling on the merits will not suffice to invoke our
mandatory appellate jurisdiction in the absence of an order
granting or denying an injunction. In fact, even if a three-judge
district court unequivocally indicates that a state law must be
enjoined as it stands, we have required more before accepting
mandatory review. For example, the Court in
Gunn found no
jurisdiction where the three-judge District Court held that a Texas
disturbing-the-peace statute was “ ‘impermissibly and
unconstitutionally broad,’ ” concluded that the plaintiffs
were “ ‘entitled to their declaratory judgment to that effect,
and to injunctive relief against the enforcement of [the statute]
as now worded, insofar as it may affect the rights guaranteed under
the First Amendment,’ ” and stayed the mandate to allow the
State to, “ ‘if it so desires, enact such disturbing-the-peace
statute as will meet constitutional requirements.’ ” 399
U. S., at 386. Despite the District Court’s resolution of the
merits and its clear indication that, unless amended, the
disturbing-the-peace statute would be enjoined, this Court
dismissed an appeal from the State for want of jurisdiction,
concluding that the District Court merely wrote a “rather
discursive
per curiam opinion” and “there was no order of
any kind either granting or denying an injunction—interlocutory or
permanent.”
Id., at 387. The Court explained that, in
addition to the congressional command to “ ‘keep within narrow
confines our appellate docket,’ ” other “policy
considerations” counseled limiting “our power of review,” including
“that until a district court issues an injunction, or enters an
order denying one, it is simply not possible to know with any
certainty what the court has decided.”
Id., at 387–388.
Those considerations, the Court thought, were “conspicuously
evident” in that case, where the opinion did not specify, for
instance, exactly what was to be enjoined or against whom the
injunction would run.
Id., at 388.
Similarly,
Whitcomb v.
Chavis, 403
U. S. 124 (1971), concerned a redistricting challenge in which
a three-judge District Court held that “a redistricting of [the
challenged county was] necessitated” and “that the evidence adduced
. . . and the additional apportionment requirements set
forth by the Supreme Court call[ed] for a redistricting of the
entire state as to both houses of the General Assembly,”
Chavis v.
Whitcomb, 305 F. Supp. 1364, 1391 (SD
Ind. 1969). Recognizing “that the federal judiciary functions
within a system of federalism which entrusts the responsibility of
legislative apportionment and districting primarily to the state
legislature,” the District Court afforded the Governor “a
reasonable opportunity to call a Special Session of the General
Assembly of the State of Indiana so that it may enact legislation
to redistrict the State and reapportion the legislative seats in
the General Assembly in accordance with federal constitutional
requirements and in compliance with [its] opinion.”
Id., at
1392. The District Court gave the State a little over two months to
enact new statutes “to remedy the improper districting and
malapportionment.”
Ibid. When the Governor appealed from
that order, this Court dismissed for want of jurisdiction because
“at [the] time no judgment had been entered and no injunction had
been granted or denied.” 403 U. S.
, at 138, n. 19.
The findings of liability on the merits and the unequivocal
indication that the redistricting and malapportionment violations
had to be remedied were not enough.
B
Straightforward application of this precedent
compels the conclusion that this Court lacks jurisdiction over
these appeals. Here, Texas appeals from two orders entered by the
three-judge District Court on August 15 and 24, 2017. Those orders
concern the constitutional and statutory challenges to Texas’ State
House and federal congressional redistricting plans, enacted by the
Texas Legislature (hereinafter Legislature) in 2013 (hereinafter
the 2013 maps). As relevant here, the orders concerned Texas House
districts in Bell County (HD54 and HD55), Dallas County (HD103,
HD104, and HD105), Nueces County (HD32 and HD34), and Tarrant
County (HD90), as well federal congressional districts encompassing
Nueces County (CD27) and parts of Travis County (CD35). The
District Court concluded that plaintiffs had proved intentional
discrimination as to HD54, HD55, HD103, HD104, HD105, HD32, HD34,
and CD27.[
1] It also concluded
that plaintiffs had proved a “results” violation under §2 of the
Voting Rights Act as to HD32, HD34, and CD27,[
2] and had established a racial gerrymandering
claim as to HD90 and CD35.[
3]
Having ruled on the challengers’ statutory and
constitutional claims, the District Court stated that all but one
of the “violations must be remedied by either the Texas Legislature
or [the District] Court.” 274 F. Supp. 3d 624, 686 (WD Tex.
2017); see also 267 F. Supp. 3d 750, 795 (WD Tex.
2017).[
4] With respect to the
§2 results violation concerning HD32 and HD34, however, the
District Court noted that it had yet to decide “whether §2 requires
a remedy for this results violation.”
Id., at 783, 795. The
District Court then ordered “the [Texas] Office of the Attorney
General to file a written advisory within three business days
stating whether the Legislature intends to take up redistricting in
an effort to cure these violations and, if so, when the matter will
be considered.” 274 F. Supp. 3d, at 686; see also 267
F. Supp. 3d, at 795. The court went on: “If the Legislature
does not intend to take up redistricting, the [District] Court will
hold a hearing to consider remedial plans” on September 5 and 6,
2017, respecting the congressional and Texas House districts. 274
F. Supp. 3d, at 686–687; see also 267 F. Supp. 3d, at
795. “In preparation for the hearing[s],” the District Court
ordered the parties to confer and to “take immediate steps to
consult with their experts and mapdrawers and prepare” maps to
present at those hearings. 274 F. Supp. 3d, at 687; 267
F. Supp. 3d, at 795.
The District Court went no further. Though there
had been a determination on the merits that Texas violated both the
Equal Protection Clause and §2 of the Voting Rights Act with
respect to a number of districts in the 2013 maps, the District
Court did not enjoin use of the 2013 maps for the upcoming 2018
elections. For instance, with respect to the congressional map, the
District Court explained that its order “only partially
addresse[d]” the challengers’ claims, as it had “bifurcated the
remedial phase” from the merits phase. 274 F. Supp. 3d, at
687. Importantly, in denying Texas’ motions for a stay, the
District Court took care to make abundantly clear the scope of its
orders: “Although the [District] Court found violations [in the
congressional and Texas House maps], the [District] Court has not
enjoined [their] use for any upcoming elections.” App.
134a–136a.
That is the end of the inquiry under our
precedent, as our past cases are directly on point. Like in
Gunn and
Whitcomb, the District Court issued a ruling
on the merits against the State. Like in
Gunn and
Whitcomb, the District Court was clear that those violations
required a remedy. Like in
Gunn and
Whitcomb, the
District Court stayed its hand and did not enter an injunction,
instead allowing the State an opportunity to remedy the violations.
Therefore, like in
Gunn and
Whitcomb, this Court
lacks jurisdiction under §1253 because there is “no order of any
kind either granting or denying an injunction—interlocutory or
permanent.”
Gunn, 399 U. S., at 387.[
5]
C
1
Despite this precedent, the majority
nonetheless concludes that our intervention at this early stage is
not only authorized, but mandatory. None of the justifications that
the majority offers for deviating from our precedent is
persuasive.
The majority justifies its jurisdictional
overreach by holding that §1253 mandates appellate review in this
Court if a three-judge district court order “has the ‘practical
effect’ of granting or denying an injunction.”
Ante, at 12.
It reasons that the Court has “previously made clear that where an
order has the ‘practical effect’ of granting or denying an
injunction, it should be treated as such for purposes of appellate
jurisdiction.”
Ibid. That reasoning, however, has no
application here. Whereas this Court has applied the “practical
effect” rule in the context of the courts of appeals’ appellate
jurisdiction under 28 U. S. C. §1292(a)(1), it has never
applied it to questions of its own mandatory appellate docket under
§1253. That explains why the only cases the majority can round up
to support its position concern jurisdiction under §1292(a)(1).
Ante, at 12 (citing
Carson v.
American Brands,
Inc., 450 U. S. 79, 83–84 (1981), and
Gulfstream
Aerospace Corp. v.
Mayacamas Corp., 485 U. S. 271,
287–288 (1988)).
This distinction matters a great deal. Courts of
appeals generally have jurisdiction over direct appeals from the
district courts. See 15A C. Wright, A. Miller, & E. Cooper,
Federal Practice and Procedure §3901, p. 13 (3d ed. 2005)
(“Courts of appeals jurisdiction extends to nearly every action
that might be taken by a district court”). In contrast, exercising
mandatory review over direct appeals in this Court is a truly
“exceptional procedure,”
Phillips, 312 U. S., at 248,
in no small part due to our “necessarily finite docket,” 16B
Wright, Federal Practice and Procedure §4003, at 19. Reading §1253
broadly risks transforming that exceptional procedure into a
routine matter, when our precedent commands a strict construction
precisely so that we can “ ‘keep within narrow confines our
appellate docket.’ ”
Goldstein, 396 U. S., at
478.
Brushing that distinction aside, the majority
contends that “we also construe Section 1292(a)(1)
‘narrowly,’ ” and have referred to the statutes as
“ ‘analogous.’ ”
Ante, at 13. True, but that is no
response to the jurisdictional obstacle of §1253. The command from
our precedent is not simply one to undertake the same narrow
interpretation as we do for §1292(a)(1). Rather, our
“long-established rule” requires “strict construction” of §1253,
Stainback, 336 U. S., at 378, so that even where the
statutory text could be read to expand our mandatory appellate
docket, this Court will not adopt that reading if a narrower
construction is available,
Goldstein, 396 U. S., at
477–478. That “strict construction” rule exists for a purpose
specific to this Court: to protect our “carefully limited appellate
jurisdiction.”
Board of Regents of Univ. of Tex. System v.
New Left Ed. Project, 404 U. S. 541, 543 (1972). Unlike
the courts of appeals, which hear cases on mandatory jurisdiction
regularly, this Court hears cases on mandatory jurisdiction only
rarely. The majority nowhere grapples with that vital contextual
distinction between §1253 and §1292(a)(1). Nor does the majority
acknowledge that, in interpreting §1253, this Court has itself
recognized that distinction, noting that “this Court
above all
others must limit its review of interlocutory orders.”
Goldstein, 396 U. S., at 478 (emphasis added).
2
Looking to escape that pitfall in its
reasoning, the majority turns to the text of the two jurisdictional
statutes. But the text provides no refuge for its position. The
majority first states that “the relevant language in the two
provisions is nearly identical.”
Ante, at 13. But whereas
§1253 provides for appeal “from an order granting or denying
. . . an interlocutory or permanent injunction,”
§1292(a)(1) provides for appeal from “[i]nterlocutory orders
. . . granting, continuing, modifying, refusing or
dissolving injunctions, or refusing to dissolve or modify
injunctions.” It is a stretch, to say the least, to characterize
these provisions as “nearly identical.”
Ante, at 13.
Next, the majority contends that §1253 and
§1292(a)(1) are “textually interlocked,”
ante, at 14, in
that §1292(a)(1) provides for appeal to the courts of appeals,
“except where a direct review may be had in the Supreme Court.” In
its view, this demonstrates that the “practical effect” rule must
apply under §1253. The majority reasons that “the consequences
would be unfortunate and strange” otherwise, imagining that an
order from a three-judge district court that had the practical
effect of an injunction but did not invoke §1253 jurisdiction would
“appear to be appealable to one of the courts of appeals” in light
of the “except” clause, a result “Congress surely did not intend”
given that it took “pains to provide for review in this Court, and
not in the courts of appeals, of three-judge court orders granting
injunctions.”
Ante, at 14.
This reasoning rests on a mistaken premise.
Congress did not provide for review of
every three-judge
court order in this Court. It provided for review of only certain
narrow categories of orders,
i.e., those granting or denying
an injunction. There is nothing “unfortunate” or “strange” about
the proposition that orders from a three-judge court that do not
fall within these narrow categories of actions made directly
appealable to this Court can be appealed only to the courts of
appeals. In fact, this Court itself has recognized as much. See,
e.g., Rockefeller v.
Catholic Medical Center of Brooklyn
& Queens, Inc., 397 U. S. 820 (1970) (
per
curiam) (“The judgment appealed from does not include an order
granting or denying an interlocutory or permanent injunction and is
therefore not appealable to this Court under 28 U. S. C.
§1253. The judgment of the District Court is vacated and the
case is remanded to that court so that it may enter a fresh decree
from which timely appeal may be taken to the Court of Appeals”
(citation omitted)); see also
Mitchell v.
Donovan,
398 U. S. 427, 431–432 (1970) (
per curiam) (concluding
that “this Court lacks jurisdiction of the appeal” under §1253 and
directing “the District Court [to] enter a fresh order
. . . thus affording the appellants an opportunity to
take a timely appeal to the Court of Appeals”).[
6] And to the extent a party prematurely appeals
to the court of appeals an order that would otherwise fall within
§1253,
e.g., if Texas had appealed the August 15 and 24
orders to the Court of Appeals for the Fifth Circuit, that court
surely will be more than capable of identifying as much and
instructing the party to wait for an actual injunction before
bringing an appeal to this Court.
3
The majority attempts to bolster its
jurisdictional conclusion with a passing reference to the “valuable
purpose” served by the “practical effect” rule,
i.e.,
preventing district courts from manipulating proceedings by
avoiding labeling their orders as “injunctions.”
Ante, at
12–13. Notably, the majority cites no evidence for the proposition
that district courts are engaging in any kind of manipulation. Nor
is there any indication that the District Court here attempted to
manipulate the proceedings by shielding its orders from appellate
review. Instead, the District Court carefully adhered to a common
practice in cases implicating important state interests, staying
its hand as to the remedy to allow the State an opportunity to act,
as happened in
Gunn and
Whitcomb.
More important, the majority ignores the
“valuable purposes” served by the longstanding rule requiring
strict construction of §1253. Not only does it comply with the
congressional command to “ ‘keep within narrow confines our
appellate docket,’ ” but without strict enforcement of the
requirement that an order grant or deny an injunction, “it is
simply not possible to know with any certainty what the court has
decided.”
Gunn, 399 U. S., at 387–388. Such clarity “is
absolutely vital in a case where a federal court is asked to
nullify a law duly enacted by a sovereign State.”
Id., at
389. Orders coming to this Court on direct appeal under the
“practical effect” rule will more often than not lack that
clarity.
In these cases, for instance, what does the
majority read the “practical effect” of the orders to have been
with respect to HD32 and HD34? The District Court held that the
challengers had “not proven that §2 requires breaking the County
Line Rule” in the Texas Constitution, Art. III, but that “§2
could require” drawing two majority-HCVAP[
7] districts. 267 F. Supp. 3d, at 783, 795. Does
the majority read that to mean that the §2 results violation could
potentially go without a remedy? If so, there would have been no
obstacle to use of the 2013 maps for those districts even after a
remedial phase. Or does the majority read that to mean that the
challengers still had more to show before the District Court
“would” redraw the districts that §2 “could” require to be redrawn?
And what is the effect of the conclusion respecting the County Line
Rule on the potential remedy for the intentional vote dilution
holding as to HD32 and HD34? The majority conveniently avoids
confronting this lack of clarity by ignoring the relevant record,
instead stating without explanation that it believes “it clear that
the District Court effectively enjoined use of these districts as
currently configured.”
Ante, at 19, n. 15. But it
cannot escape the reality that its rule will “needlessly complicate
appellate review,”
ante, at 15, given that “it is simply not
possible [absent an injunction] to know with any certainty what the
court has decided,”
Gunn, 399 U. S., at 388.
I do not disagree that “lack of specificity in
an injunctive order would [not] alone deprive the Court of
jurisdiction under §1253.”
Id., at 389, n. 4; see also
ante, at 16 (quoting
Gunn). “But the absence of any
semblance of effort by the District Court to comply with [the
specificity required of injunctive orders under the Federal Rules]
makes clear that the court did not think its [orders] constituted
an order granting an injunction.”
Gunn, 399 U. S., at
389. If any doubt remained as to the effect of the orders here,
moreover, the District Court explicitly assured the parties that,
even though it had found violations, it was not enjoining use of
the 2013 maps for the upcoming elections. App. 134a–136a.
Finally, it is axiomatic that “administrative
simplicity is a major virtue in a jurisdictional statute.”
Hertz
Corp. v.
Friend, 559 U. S. 77, 94 (2010).
“Complex jurisdictional tests complicate a
case . . . . Complex tests produce appeals and
reversals, [and] encourage gamesmanship . . . .
Judicial resources too are at stake [as] courts benefit from
straightforward rules under which they can readily assure
themselves of their power to hear a case. Simple jurisdictional
rules also promote greater predictability.”
Ibid. (citations
omitted).
Simple is thus the name of the game when it
comes to jurisdictional rules. The rule in the majority opinion is
anything but. Although the majority claims that a mere “finding on
liability cannot be appealed unless an injunction is granted or
denied,”
ante, at 20, the rule it embraces today makes it
hard to understand when a finding on liability would not be read,
as the majority does here, as having the “practical effect” of an
injunction. It is a worrisome prospect that, after today, whenever
a three-judge district court expresses that a statutory or
constitutional violation must be remedied, the party held liable
will straightaway file an appeal in this Court and assert
jurisdiction under §1253, even where the district court is clear
that no injunction has issued.[
8]
The majority opinion purports to add a limit by
distinguishing between unappealable orders that find a plan
“unlawful long before the next scheduled election” or “very close
to the election date,” and those (presumably) appealable orders
that are entered neither “long before” nor “very close” to the next
election.
Ante, at 20.[
9] What does that even mean? The orders at issue here were
entered about 15 months before the 2018 elections, and according to
the majority fall within the not “long before” but not “very close”
appealable range. Why this is so, however, the majority never says.
Without any definitions for its boundary posts, courts will be left
to wonder: What about orders entered 17 or 18 months before an
election? Are those considered “long before” so they would be
unappealable? And are orders entered 14, 13, or 12 months before
the election similarly unappealable because they were entered “very
close” to the election date? And what does the majority mean by
“the election date”? Does that include primaries? What about
registration deadlines, or ballot-printing deadlines? It is not
uncommon for there to be, at any given time, multiple impending
deadlines relating to an upcoming election. Thinking through the
many variations of jurisdictional disputes that will arise over the
years following this novel reading of §1253 should be enough to
stop the majority from rewriting our long established jurisprudence
in this area.
After today, our mandatory appellate docket will
be flooded by unhappy litigants in three-judge district court
cases, demanding our review. Given the lack of predict- ability,
the rule will incentivize appeals and “encourage gamesmanship.”
Hertz Corp., 559 U. S., at 94. The Court will no doubt
regret the day it opened its courthouse doors to such
time-consuming and needless manipulation of its docket.
D
Even if the majority were correct to import
the “practical effect” rule into the §1253 context, moreover, that
would still not justify the Court’s premature intervention in these
appeals for at least two reasons. First, while taking from
Carson the “practical effect” rule it likes, the majority
gives short shrift to the second half of that case, in which the
Court was explicit that “[u]nless a litigant can show that an
interlocutory order . . . might have a ‘serious, perhaps
irreparable, consequence,’ and that the order can be ‘effectually
challenged’ only by immediate appeal, the general congressional
policy against piecemeal review will preclude interlocutory
appeal.” 450 U. S., at 84. Texas has made no showing of a
“serious, perhaps irreparable consequence” requiring our immediate
intervention, nor has Texas shown that the orders could not be
“effectually challenged” after the remedial stage was completed. In
fact, when Texas sought a stay of those orders before this Court,
the 2018 elections were more than a year away. For the majority,
however, it is enough that the District Court found the Texas
redistricting maps to be in violation of federal law.
Ante,
at 20–21. That cursory application of
Carson, in particular
whether the injunctions the majority reads into the August 15 and
24 orders could be “effectually challenged” absent immediate appeal
to this Court, deprives that limit to our jurisdiction of much of
its meaning when assessing Texas’ request for our intervention in
these cases. Nothing in our precedent supports that truncated
approach. And in any event, if Texas wanted review of the orders
after any injunction was entered by the District Court, it could
have asked this Court for an emergency stay.
Second, the August 15 and 24 orders at issue
here sim- ply did not have the “practical effect” of enjoining
Texas’ use of the 2013 maps. The majority thinks otherwise in part
because the District Court noted that the violations “ ‘must
be remedied.’ ”
Ante, at 16. In addition, the major-
ity believes that “Texas had reason to fear that if it tried to
conduct elections under plans that the court had found to be
‘racially discriminatory,’ the court would infer an evil motive and
perhaps subject the State once again to the strictures of
preclearance under §3(c) of the Voting Rights Act.”
Ante, at
17–18. But the majority forgets that the District Court made
explicit that “[a]lthough [it] found violations [in the 2013 maps],
[it] ha[d] not enjoined [their] use for any upcoming elections.”
App. 134a–136a. That the District Court requested the Texas
attorney general to advise it, within “three business days,”
whether “the Legislature intends to take up redistricting in an
effort to cure [the] violations,” 274 F. Supp. 3d, at 686; 267
F. Supp. 3d, at 795, does not undermine that unequivocal
statement. Nothing in that language indicates that the District
Court required the Legislature to “redraw both maps
immediately” or else “the court would do so itself.” Brief
for Appellants 20 (emphasis in original). Instead, recognizing
“that the federal judiciary functions within a system of federalism
which entrusts the responsibility of legislative . . .
districting primarily to the state legislature,”
Whitcomb,
305 F. Supp., at 1392, the District Court gave Texas an
opportunity to involve its Legislature and asked for a simple
statement of intent so that the court could manage its docket
accordingly. This request for a statement of intent, which was
necessary for the District Court to manage its own docket, does not
transform the orders into injunctions.
As to the second point, if Texas had any “fear”
regarding the use of its maps, despite having been explicitly told
that the maps were not enjoined, that would still not be enough.
This Court recognized in
Gunn that the State in that case,
faced with the order declaring its statute unconstitutional, “would
no doubt hesitate long before disregarding it.” 399 U. S., at
390. That hesitation was not enough in
Gunn to magically
transform an order into an injunction for purposes of §1253, and
nothing about these cases justifies the majority taking out its
wand today. Whatever “fear” Texas had does not transform the August
15 and 24 orders into injunctions. And absent an injunction, this
Court lacks jurisdiction over these appeals. The cases should thus
be dismissed.
II
Having rewritten the limits of §1253, the
majority moves to the merits. There again the Court goes astray. It
asserts that the District Court legally erred when it purportedly
shifted the burden of proof and “required the State to show that
the 2013 Legislature somehow purged the ‘taint’ that the court
attributed to the defunct and never-used plans enacted by a prior
legislature in 2011.”
Ante, at 21. But that holding ignores
the substantial amount of evidence of Texas’ discriminatory intent,
and indulges Texas’ warped reading of the legal analysis and
factual record below.[
10]
A
Before delving into the content of the August
15 and 24 orders, a quick recap of the rather convoluted history of
these cases is useful. In 2011, the Texas Legislature redrew its
electoral districts. Various plaintiff groups challenged the 2011
maps under §2 of the Voting Rights Act and the Fourteenth
Amendment, and those lawsuits were consolidated before the
three-judge District Court below pursuant to 28 U. S. C.
§2284(a). Because Texas then was subject to preclearance under §5
of the Voting Rights Act, the 2011 maps did not take effect
immediately, and Texas filed a declaratory action in the District
Court for the District of Columbia to obtain preclearance.
“Faced with impending election deadlines and
un-precleared plans that could not be used in the [2012] election,
[the District] Court was faced with the ‘unwelcome obligation’ of
implementing interim plans so that the primaries could proceed.”
274 F. Supp. 3d, at 632. In January 2012, this Court vacated
the first iteration of those interim maps in
Perry v.
Perez, 565 U. S. 388, 394–395 (2012) (
per
curiam), finding that the District Court failed to afford
sufficient deference to the Legislature. In February 2012, the
District Court issued more deferential interim plans, but noted
that its analysis had been expedited and curtailed, and that it had
only made preliminary conclusions that might be revised on full
consideration. C. J. S. 367a–424a; H. J. S.
300a–315a.
In August 2012, the D. C. District Court
denied preclearance of the 2011 maps.
Texas v.
United
States, 887 F. Supp. 2d 133 (2012). It concluded that the
federal congressional map had “retrogressive effect” and “was
enacted with discriminatory intent,”
id., at 159, 161, and
that the State House map was retrogressive and that “the full
record strongly suggests that the retrogressive effect
. . . may not have been accidental,”
id., at 178.
Texas appealed, and the case was eventually dismissed following
Shelby County v.
Holder, 570 U. S. 529 (2013)
(holding unconstitutional the formula used to subject States to the
preclearance requirement).
In June 2013, the Texas Governor called a
special legislative session, and that same month the Legislature
adopted the 2012 interim maps as the permanent maps for the State.
The Legislature made small changes to the maps, including redrawing
the lines in HD90, but the districts at issue in these appeals all
remained materially unchanged from the 2011 maps.
The District Court in these cases denied Texas’
motion to dismiss the challenges to the 2011 maps, and the
challengers amended their complaints to assert claims respecting
the 2013 maps. In April and May 2017, the District Court held that
districts in Texas’ 2011 maps violated §2 and the Fourteenth
Amendment. The August 15 and 24 orders respecting the 2013 maps
followed.
B
The majority believes that, in analyzing the
2013 maps, the District Court erroneously “attributed [the] same
[discriminatory] intent [harbored by the 2011 Legislature] to the
2013 Legislature” and required the 2013 Legislature to purge that
taint.
Ante, at 9–10. The District Court did no such thing.
It engaged in a painstaking analysis of discriminatory intent under
Arlington Heights v.
Metropolitan Housing Development
Corp., 429 U. S. 252 (1977), which is critical to
understanding why, as explained in Part II–D,
infra, the
District Court did not improperly presume that the Legislature
acted with discriminatory intent.
Under
Arlington Heights, “in determining
whether racially discriminatory intent existed,” this Court
considers “circumstantial and direct evidence” of: (1) the
discriminatory “impact of the official action,” (2) the “historical
background,” (3) the “specific sequence of events leading up to the
challenged decision,” (4) departures from procedures or substance,
and (5) the “legislative or administrative history,” including
any “contemporary statements” of the lawmakers. 429 U. S., at
266–268. Although this analysis must start from a strong
“presumption of good faith,”
Miller v.
Johnson, 515
U. S. 900, 916 (1995), a court must not overlook the relevant
facts. This Court reviews the “findings of fact” made by the
District Court, including those respecting legislative motivations,
“only for clear error.”
Cooper v.
Harris, 581
U. S. ___, ___–___ (2017) (slip op., at 3–4); see also
Anderson v.
Bessemer City, 470 U. S. 564, 573
(1985). The Court therefore “may not reverse just because we ‘would
have decided the [matter] differently. . . . A
finding that is ‘plausible’ in light of the full record—even if
another is equally or more so—must govern.”
Harris, 581
U. S., at ___ (slip op., at 4).
The District Court followed the guidance in
Arlington Heights virtually to a tee, and its factual
findings are more than “plausible” in light of the record. To
start, there is no question as to the discriminatory impact of the
2013 plans, as the “specific portions of the 2011 plans that [the
District Court] found to be discriminatory or unconstitutional
racial gerrymanders continue unchanged in the 2013 plans, their
harmful effects ‘continu[ing] to this day.’ ” 274
F. Supp. 3d, at 649 (alteration in original). Texas, more-
over, has a long “history of discrimination” against minority
voters.
Id., at 648, n. 37. “In the last four decades,
Texas has found itself in court every redistricting cycle, and each
time it has lost.”
Texas, 887 F. Supp. 2d, at 161.
There is also ample evidence that the 2013
Legislature knew of the discrimination that tainted its 2011 maps.
“The 2013 plans were enacted by a substantially similar Legislature
with the same leadership only two years after the original
enactment.” 274 F. Supp. 3d, at 648, n. 37. The
Legislature was also well aware that “the D. C. court
concluded that [its 2011] maps were tainted by evidence of
discriminatory purpose,” H. J. S. 443a, and despite the
District Court having warned of the potential that the Voting
Rights Act may require further changes to the maps, “the
Legislature continued its steadfast refusal to consider [that]
possibility,” 274 F. Supp. 3d, at 649.
Turning to deliberative process—on which the
majority is singularly focused, to the exclusion of the rest of the
factors analyzed in the orders below, see Part II–D,
infra—the District Court concluded that Texas was just “not
truly interested in fixing any remaining discrimination in the
[maps].” 274 F. Supp. 3d, at 651, n. 45. Despite knowing
of the discrimination in its 2011 maps, “the Legislature did not
engage in a deliberative process to ensure that the 2013 plans
cured any taint from the 2011 plans.”[
11]
Id., at 649. For instance, Representative
Darby, a member of the redistricting committee, “kept stating that
he wanted to be informed of legal deficiencies so he could fix
them,” but “he did not himself seek to have the plan evaluated for
deficiencies and he willfully ignored those who pointed out
deficiencies, continuing to emphasize that he had thought ‘from the
start’ that the interim plans were fully legal.”
Id., at
651, n. 45.[
12] The
Legislature made no substantive changes to the challenged districts
that were the subject of the 2011 complaints, and “there is no
indication that the Legislature looked to see whether any
discriminatory taint remained in the plans.”
Id., at 649. In
fact, the only substantive change that the Legislature made to the
maps was to add
more discrimination in the form of a new
racially gerrymandered HD90, as the majority concedes.
Ante,
at 39–41.
The absence of a true deliberative process was
coupled with a troubling sequence of events leading to the
enactment of the 2013 maps. Specifically, “the Legislature pushed
the redistricting bills through quickly in a special session,” 274
F. Supp. 3d, at 649, despite months earlier having been urged
by the Texas attorney general to take on redistricting during the
regular session,
id., at 634; see also H. J. S.
440a. By pushing the bills through a special session, the
Legislature did not have to comply with “a two-thirds rule in the
Senate or a calendar rule in the House,” 274 F. Supp. 3d, at
649, n. 38, and it avoided the “full public notice and
hearing” that would have allowed “ ‘meaningful input’ from all
Texans, including the minor- ity community,” H. J. S.
444a. In addition, “necessary resources were not allocated to
support a true deliberative process.” 274 F. Supp. 3d, at 649.
For instance, the House committee “did not have counsel when the
session started.”
Ibid., n. 39.
Nor can Texas credibly claim to have understood
the 2012 interim orders as having endorsed the legality of its maps
so that adopting them would resolve the challengers’ complaints. In
its 2012 interim orders, “the [District] Court clearly warned that
its preliminary conclusions . . . were not based on a
full examination of the record or the governing law and were
subject to revision” “given the severe time constraints
. . . at the time” the orders were adopted.
Id.,
at 650. The District Court also explained that the “claims
presented . . . involve difficult and unsettled legal
issues as well as numerous factual disputes.” C. J. S.
367a. During the redistricting hearings, chief legislative counsel
for the Texas Legislative Council in 2013, Jeff Archer, advised the
Legislature that the District Court “ ‘had not made full
determinations, . . . had not made fact findings on every
issue, had not thoroughly analyzed all the evidence’ ” and had
“ ‘made it explicitly clear that this was an interim plan to
address basically first impression of voting rights issues.’ ”
274 F. Supp. 3d, at 650 (alterations in original); see also
App. 441a–442a (testimony that interim plans were “impromptu” and
“preliminary” and that the District Court “disclaimed making final
determinations”). Archer explained that although the Legislature
had “ ‘put to bed’ ” challenges regarding “ ‘those
issues that the [District] Court identified so far,’ ” it had
not “ ‘put the rest to bed.’ ” 274 F. Supp. 3d, at
651, n. 45; see also App. 446a–447a (advising that, “on a realistic
level,” the Legislature had not “removed legal challenges” and that
adopting the interim maps “in no way would inoculate the
plans”).
There was substantial evidence that the 2013
Legislature instead adopted the interim plans as part of a
“strategy [that] involved adopting the interim maps, however
flawed,” to insulate (and thus continue to benefit from) the
discriminatory taint of its 2011 maps. 274 F. Supp. 3d, at
651. Texas hoped that, by adopting the 2012 interim maps, the
challengers “would have no remedy, and [the Legislature] would
maintain the benefit of such discrimination or unconstitutional
effects.”
Ibid. That strategy originated with the Texas
attorney general, who was responsible for defending the State in
the redistricting challenges.
Id., at 650, and n. 41.
He advised the Legislature that adopting the interim plans was the
“ ‘best way to avoid further intervention from federal
judges’ ” and to “ ‘
insulate [Texas’]
redistricting plans from further legal challenge.’ ”
Id., at 650 (emphasis added); see also H. J. S.
443a. The Texas attorney general also drafted the “legislative fact
findings accompanying the plans,
before the Legislature had
engaged in any fact findings on the bills,” stating that the 2012
interim plans “complied ‘with all federal and state constitutional
provisions or laws applicable to redistricting plans.’ ” 274
F. Supp. 3d, at 650, n. 41 (emphasis added). That the
legislative factfindings were predrafted by the attorney defending
Texas in these redistricting challenges—purporting to conclude that
the 2012 interim plans complied with the law, when in fact the
evidence showed that the Legislature did not engage in a true
deliberative process or meaningfully consider evidence of the
legality of the plans so that it could have endorsed such
factfindings—demonstrates that the adoption of the interim plans
was a mere pretext to insulate the discriminatory benefits of the
2011 plans. That explains why legislators thought that removal of
those fact findings would “ ‘gu[t] the bill.’ ”
Ibid.
In the end, having presided over years of
litigation and seeing firsthand all of the evidence, the District
Court thought it clear that Texas’ “strategy involved adopting the
interim maps, however flawed” so that the challengers “would have
no remedy, and [Texas] would maintain the benefit of such
discrimination and unconstitutional effects.”
Id., at 651.
It is hard to imagine what a more thorough consideration of the
Arlington Heights factors in these cases would have looked
like. Review of the District Court’s thorough inquiry leads to the
inescapable conclusion that it did not err—let alone clearly err—in
concluding that the “Legislature in 2013 intentionally furthered
and continued the existing discrimination in the plans.” 274
F. Supp. 3d, at 652.
C
In contrast to that thorough
Arlington
Heights inquiry, the majority engages in a cursory analysis of
the record to justify its conclusion that the evidence
“overwhelmingly” shows that Texas acted with legitimate intent.
Ante, at 28. Two critical things are conspicuously missing
from its analysis: first, consideration of the actual factual
record (or most of it, anyway),[
13] and second, meaningful consideration of the limits of
our review of facts on these appeals.[
14]
The majority first makes reference to the fact
that the Texas attorney general “advised the Legislature that the
best way to [end the redistricting litigation] was to adopt the
interim, court-issued plans,” a position repeated by the sponsor of
the plans.
Ante, at 26. And in its view, it was reasonable
for the Legislature to believe that adopting the interim plans
“might at least reduce objections and thus simplify and expedite
the conclusion of the litigation.”
Ante, at 28. The majority
also states that “there is no evidence that the Legislature thought
that the plans were invalid.”
Ante, at 27. In reaching those
findings, however, the majority ignores all of the evidence in the
record that demonstrates that the Legislature was aware of (and
ignored) the infirmities in the maps, that it knew that adopting
the interim plans would not resolve the litigation concerning the
disputed districts, and that it nevertheless moved forward with the
bills as a strategy to “insulate” the discriminatory maps from
further judicial scrutiny and perpetuate the discrimination
embedded in the 2012 interim maps. See Part II–B,
supra.
Instead of engaging with the factual record, the
majority opinion sets out its own view of “the situation when the
Legislature adopted the court-approved interim plans.”
Ante,
at 28. Under that view, “the Legislature [had] good reason to
believe that the court-approved interim plans were legally sound,”
particularly in light of our remand instructions in
Perry,
565 U. S. 388.
Ante, at 28–29. The majority nowhere
considers, however, the evidence regarding what the Legislature
actually had before it concerning the effect of the interim
orders, including the explicit cautionary statements in the orders
and the repeated warnings of the chief legislative counsel that the
interim plans were preliminary, incomplete, and impromptu.[
15] See Part II–B,
supra.
The majority finds little significance in the
fact that the Legislature “ ‘pushed the redistricting bills
through quickly in a special session,’ ” reasoning that a
special session was needed “because the regular session had ended.”
Ante, at 29. That of course ignores the evidence that the
Legislature disregarded requests by the Texas attorney general,
months earlier, to take up redistricting during the regular
session, that proceeding through a special session permitted the
Legislature to circumvent procedures that would have ensured full
and adequate consideration, and that resources were not
sufficiently allocated to permit considered review of the plans.
See Part II–B,
supra.
Finally, the majority sees nothing wrong with
the fact that the Legislature failed “to take into account the
problems with the 2011 plans that the D. C. court identified
in denying preclearance.”
Ante, at 30. It maintains that the
purpose of adopting the interim plans was to “fix the problems
identified by the D. C. court,” and reasons that the interim
maps did just that by modifying any problematic districts.
Ibid. But of course the finding of discriminatory intent
rested not only on what happened with particular districts. Rather,
the evidence suggested that discriminatory motive permeated the
entire 2011 redistricting process, as the D. C. court
considered that “Texas has found itself in court every
redistricting cycle [in the last four decades], and each time it
has lost”; that “Black and Hispanic members of Congress testified
at trial that they were excluded completely from the process of
drafting new maps, while the preferences of Anglo members were
frequently solicited and honored”; that the redistricting
committees “released a joint congressional redistricting proposal
for the public to view only after the start of a special
legislative session, and each provided only seventy-two hours’
notice before the sole public hearing on the proposed plan in each
committee”; that minority members of the Texas Legislature “raised
concerns regarding their exclusion from the drafting process and
their inability to influence the plan”; and that the Legislature
departed from normal procedure in the “failure to release a
redistricting proposal during the regular session, the limited time
for review, and the failure to provide counsel with the necessary
election data to evaluate [Voting Rights Act] compliance.” 887
F. Supp. 2d, at 161. The majority also ignores the findings of
retrogression concerning the previous version of CD25, which of
course are relevant to the challengers’ claims about CD27 and CD35
in this litigation and were not addressed in the 2012 interim
plans. See Part III–A,
infra. That the 2012 interim maps
addressed some of the deficiencies identified by the D. C.
court in the preclearance litigation does not mean that the
Legislature in 2013 was free to wholly disregard the significance
of other evidence of discrimination that tainted its 2011 maps and
were entrenched in the 2012 interim maps.
Even had the majority not ignored the factual
record, it still would be wrong in concluding that the District
Court erred in finding that the 2013 Legislature acted with the
intent to further and benefit from the discrimination in the 2011
maps. In light of the record before this Court, the finding of
invidious intent is at least more than “ ‘plausible’ ”
and thus “must govern.”
Harris, 581 U. S., at ___ (slip
op., at 4). The majority might think that it has a “better view of
the facts” than the District Court did, but “the very premise of
clear error review is that there are often ‘two
permissible’—because two ‘plausible’—‘views of the
evidence.’ ”
Id., at ___–___ (slip op., at 9–10).
D
The majority resists the weight of all this
evidence of invidious intent not only by disregarding most of it
and ignoring the clear-error posture, but also by endorsing Texas’
distorted characterizations of the intent analysis in the orders
below. Specifically, the majority accepts Texas’ argument that the
District Court “reversed the burden of proof” and “imposed on the
State the obligation of proving that the 2013 Legislature had
experienced a true ‘change of heart’ and had ‘engage[d] in a
deliberative process to ensure that the 2013 plans cured any taint
from the 2011 plans.’ ”
Ante, at 23 (alteration in
original). The District Court did no such thing, and only a
selective reading of the orders below could support Texas’
position.
It is worth noting, as a preliminary matter,
that the majority does not question the relevance of historical
discrimination in assessing present discriminatory intent. Indeed,
the majority leaves undisturbed the longstanding principle
recognized in
Arlington Heights that the “ ‘historical
background’ of a legislative enactment is ‘one evidentiary source’
relevant to the question of intent.”
Ante, at 22 (quoting
Arlington Heights, 429 U. S., at 267). With respect to
these cases, the majority explicitly acknowledges that, in
evaluating whether the 2013 Legislature acted with discriminatory
purpose, “the intent of the 2011 Legislature . . . [is]
relevant” and “must be weighed together with any other direct and
circumstantial evidence” bearing on intent.
Ante, at 26.
If consideration of this “ ‘historical
background’ ” factor means anything in the context of
assessing intent of the 2013 Legislature, it at a minimum required
the District Court to assess how the 2013 Legislature addressed the
known discrimination that motivated the drawing of the district
lines that the Legislature was adopting, unchanged, from the 2011
maps. Therefore, the findings as to whether the 2013 Legislature
engaged in a good-faith effort to address any known discrimination
that tainted its 2011 plans were entirely apposite, so long as the
District Court “weighed [this factor] together with any other
direct and circumstantial evidence” bearing on the intent question,
and so long as the burden remained on the challengers to establish
invidious intent.
Ante, at 26.
The majority faults the District Court for not
adequately engaging in that weighing and giving too “central” a
focus to the historical factor in its intent analysis.
Ante,
at 23; see also
ante, at 23–24, n. 18. That alleged
“central” focus, the majority contends, led the District Court to
shift the burden of proof on the intent inquiry away from the
challengers, instead requiring Texas to show that the Legislature
cured its past transgressions.
Ante, at 23. Those
conclusions can only be supported if, as Texas and the majority
have done, one engages in a highly selective reading of the
District Court orders.
To begin, entirely absent from the majority
opinion is any reference to the portions of the District Court
orders that unequivocally confirm its understanding that the burden
remained on the challengers to show that the 2013 Legislature acted
with invidious intent. The District Court was explicit that the
challengers bore the burden to “establish their claim by showing
that the Legislature adopted the plans with a discriminatory
purpose, maintained the district lines with a discriminatory
purpose, or intentionally furthered preexisting intentional
discrimination.” 274 F. Supp. 3d, at 646; see also
id.,
at 645 (discussing Circuit precedent regarding the showing needed
for “a plaintiff [to] meet the purpose standard”).[
16]
Even when it does look at the actual language of
the orders, the majority picks the few phrases that it believes
support its argument, choosing to disregard the rest. For instance,
the majority quotes the District Court order as having required
Texas to show that the 2013 Legislature had a “ ‘change of
heart.’ ”
Ante, at 23 (quoting 274 F. Supp. 3d, at
649). When that sentence is read in full, however, it is evident
that the District Court was not imposing a “duty to expiate” the
bad intent of the previous Legislature, as the majority contends,
ante, at 23, but instead was describing what the weighing of
the direct and circumstantial evidence revealed about the
motivations of the 2013 Legislature: “The decision to adopt the
interim plans was not a change of heart concerning the validity of
[the challengers’] claims . . . —it was a litigation
strategy designed to insulate the 2011 or 2013 plans from further
challenge, regardless of their legal infirmities.” 274
F. Supp. 3d, at 649–650.
Likewise, the majority quotes the orders as
requiring proof that the Legislature “ ‘engage[d] in a
deliberative process to ensure that the 2013 plans cured any taint
from the 2011 plans.’ ”
Ante, at 23 (quoting 274
F. Supp. 3d, at 649). But the District Court did not put the
burden on Texas to make that affirmative showing. Instead, that
partial quote is lifted from a sentence in which the District
Court, having held a trial on these factual issues, concluded that
the challengers had met their burden to show that “the Legislature
did not engage in a deliberative process,” which it supported later
in that paragraph with findings that the Legislature “pushed the
redistricting bills through quickly in a special session” without
allocating the “necessary resources . . . to support a
true deliberative process.” 274 F. Supp. 3d, at 649.
The majority finally asserts that the District
Court “drove the point home” when it “summarized its analysis” as
follows: “ ‘The discriminatory taint [from the 2011 plans] was
not removed by the Legislature’s enactment of the Court’s interim
plans, because the Legislature engaged in no deliberative process
to remove any such taint, and in fact intended any such taint to be
maintained but safe from remedy.’ ”
Ante, at 23
(quoting 274 F. Supp. 3d, at 686). The majority no doubt hopes
that the reader will focus on the portion of the sentence in which
the District Court concludes that the discriminatory taint found in
the 2011 maps “ ‘was not removed’ ” by the enactment of
the interim maps “ ‘because the Legislature engaged in no
deliberative process to remove any such taint.’ ”
Ante,
at 23 (quoting 274 F. Supp. 3d, at 686).[
17] But the majority ignores the import of the
remaining part of the sentence, in which the District Court held
that the Legislature “in fact intended any such taint to be
maintained but be safe from remedy.” 274 F. Supp. 3d, at 652;
see also
id., at 686. The majority also conveniently leaves
out the sentence that immediately follows: “The Legislature in 2013
intentionally furthered and continued the existing discrimination
in the plans.”
Id., at 652. When read in full and in
context, it is clear that the District Court remained focused on
the evidence proving the intent of the 2013 Legislature to shield
its plans from a remedy and thus further the discrimination, rather
than simply presuming invidious intent from the failure to remove
the taint, as the majority claims.
In selectively reviewing the record below, the
majority attempts to shield itself from the otherwise unavoidable
conclusion that the District Court did not err. If forced to
acknowledge the true scope of the legal analysis in the orders
below, the majority would find itself without support for its
insistence that the District Court was singu- larly focused on
whether the Legislature “removed” past taint. And then the majority
would have to contend with the thorough analysis of the
Arlington Heights factors, Part II–B,
supra, that led
the District Court to conclude that the 2013 Legislature acted with
invidious intent.
III
The majority fares no better in its
district-by-district analysis. In line with the theme underlying
the rest of its analysis, the majority opinion overlooks the
factual record and mischaracterizes the bulk of the analysis in the
orders below in concluding that the District Court erred in finding
a §2 results violation as to CD27, HD32, and HD34. I first address
CD27, and then turn to HD32 and HD34.
A
1
To put in context the objections to the
District Court’s conclusion regarding CD27, a brief review of the
District Court’s factual findings as to that district is necessary.
Before 2011, CD27 was a Latino opportunity district,
i.e., a
majority-HCVAP district with an opportunity to elect a
Hispanic-preferred candidate. When the Legislature reconfigured the
district in 2013, it moved Nueces County, a majority-HCVAP county,
into a new Anglo-majority district to protect an incumbent “who was
not the candidate of choice of those Latino voters” and likely
would have been “ousted” by them absent the redistricting.
C. J. S. 181a, 191a. The District Court found that the
“placement of Nueces County Hispanics in an Anglo-majority district
ensures that the Anglo majority usually will defeat the
minority-preferred candidate, given the racially polarized voting
in the area.”
Id., at 189a–190a. It also found that “the
political processes are not equally open to Hispanics” in Texas as
a result of its “history of official discrimination touching on the
right of Hispanics to register, vote, and otherwise to participate
in the democratic process [that] is well documented,” and that
“Latinos bear the effects of past discrimination in areas such as
education and employment/income, which hinder their ability to
participate effectively in the political process.”
Id., at
190a–191a. Given those findings, the District Court concluded that
the newly constituted CD27 “has the effect of diluting Nueces
County Hispanic voters’ electoral opportunity.”
Id., at
191a.
Texas nevertheless contended (and maintains
here) that no §2 results violation existed because only “seven
compact Latino opportunity districts could be drawn in South/West
Texas,”
id., at 181a, and that all seven districts already
existed under its maps. To explain how it counted to seven, Texas
pointed to the creation of CD35 as a supposed new Latino
opportunity district that joined Travis County Hispanics with
Hispanics in San Antonio. The District Court agreed that only seven
such districts could be drawn in the area, but rejected Texas’
invocation of CD35 as a defense. The District Court concluded that
because Travis County “[did] not have Anglo bloc voting,” 274
F. Supp. 3d, at 683, §2 did not require the placement of
Travis County Hispanics in an opportunity district,
C. J. S. 176a; see also
Thornburg v.
Gingles, 478 U. S. 30, 51 (1986). The District Court
found that Texas had moved Travis County Hispanics from their
pre-2011 district, CD25, to the newly constituted CD35, not to
comply with §2, but “to use race as a tool for partisan goals
. . . to intentionally destroy an existing district with
significant minority population (both African American and
Hispanic) that consistently elected a Democrat (CD25).” 274
F. Supp. 3d, at 683. Thus, it concluded that “CD35 was an
impermissible racial gerrymander because race predominated in its
creation without furthering a compelling state interest.”
Ibid.
Importantly, the District Court concluded that,
without CD35, Texas could have drawn one more Latino opportunity
district in South/West Texas that included Nueces County Hispanics.
C. J. S. 181a; see also
id., at 190a (“Plaintiffs
have thus shown that a district could be drawn in which Hispanics,
including Nueces County Hispanics, are sufficiently numerous and
geographically compact to constitute a majority HCVAP”);
id., at 192a (“Numerous maps also demonstrated that
accommodating the §2 rights of all or most Nueces County Hispanic
voters would not compromise the §2 rights of any other voters, and
in fact including it substantially accommodates the §2 rights of
Hispanic voters in South/West Texas”). Indeed, “[p]lans were
submitted during the legislative session and during this litigation
that showed that seven compact districts could be drawn that
included all or most Nueces County Hispanic voters but not Travis
County voters.”
Id., at 181a, n. 47.
2
Nothing in the record or the parties’ briefs
suggests that the District Court clearly erred in these findings of
fact, which unambiguously support its conclusion that there is a §2
results violation with respect to CD27. Nevertheless, the majority
offers two reasons for reversing that conclusion. First, the
majority contends that the District Court erred because “in
evaluating the presence of majority bloc voting in CD35,” it
“looked at only one, small part of the district, the portion that
falls within Travis County.”
Ante, at 34. It cites to
Bethune-Hill v.
Virginia State Bd. of Elections, 580
U. S. ___, ___ (2017) (slip op., at 12), an equal protection
racial gerrymandering case, for the proposition “that redistricting
analysis must take place at the district level.”
Ante, at
34. According to the majority, then, the District Court should have
looked at the existence of majority bloc voting in CD35 as a whole
after the 2011 redistricting.
But the majority confuses the relevant inquiry,
as well as the relevant timeline. The particular §2 question here
does not concern the status of Travis County Latinos in the newly
constituted CD35 after the 2011 redistricting. Rather, it concerns
the status of Travis County Latinos in the old CD25, prior to the
2011 redistricting. That is because the challengers’ §2 claim
concerns the choices before the Legislature
at the time of the
2011 redistricting, when it was deciding which Latinos in
South/West Texas to place in the new opportunity district to be
created in that area of the State. The Legislature chose to include
Travis County Latinos in an opportunity district at the expense of
the Nueces County Latinos, who were instead moved into a
majority-Anglo district. So the question is whether, knowing that
Nueces County Latinos indisputably had a §2 right, the
Legislature’s choice was nevertheless justified because the Travis
County Latinos also had a §2 right that needed to be accommodated.
In other words, did the Legislature actually create a new §2
opportunity district for persons with a §2 right, or did it simply
move people without a §2 right into a new district and just call it
an opportunity district? To answer that question, the status of
Travis County Latinos in 2011 is the only thing that matters, and
the District Court thus correctly focused its inquiry on whether
bloc voting existed in Travis County
prior to the 2011
redistricting, such that Travis County Latinos could be found to
have a §2 right. Whether the newly constituted CD35
now
qualifies as a §2 opportunity district—an inquiry that would, as
the majority suggests, call for district-wide consideration—is
beside the point.
Second, the majority reasons that “the 2013
Legislature had ‘good reasons’ to believe that [CD35] was a viable
Latino opportunity district that satisfied the
Gingles
factors.”
Ante, at 35. For this, the majority cites to the
fact that the district “was based on a concept proposed by MALDEF”
and that one group of plaintiffs “argued that the district [was]
mandated by §2,” and vaguely suggests that, contrary to the
District Court’s finding, “there is ample evidence” of majority
bloc voting in CD35.
Ibid.[
18]
The majority forgets, yet again, that we review
factual findings for clear error.
Harris, 581 U. S., at
___–___ (slip op., at 3–4). Indeed, its analysis is too cursory
even for
de novo review. The majority does not
meaningfully engage with the full factual record below. Instead, it
looks only to the handful of favorable facts cited in Texas’
briefs. Compare Brief for Appellants 46 with
ante, at 35.
Had the majority considered the full record, it could only have
found that the District Court cited ample evidence in support of
its conclusion that the Legislature had no basis for believing that
§2 required its drawing of CD35. In fact, the District Court noted
that Texas in 2011 “actually asserted that CD35 is not required by
§2,” C. J. S. 174a, n. 40, that the main plan
architect testified that he was not sure whether §2 required
drawing the district, and that testimony at trial showed that the
district was drawn because, on paper, it would fulfill the
requirement of being majority-HCVAP while providing Democrats only
one new district, and “not because all of the
Gingles
factors were satisfied,”
id., at 178a–179a, n. 45. The
District Court also concluded that “there is no evidence that any
member of the Legislature . . . had any basis in evidence
for believing that CD35 was required by §2 other than its
HCVAP-majority status.”
Ibid.
Had the majority properly framed the inquiry and
ap-plied the clear-error standard to the full factual record, it
could not convincingly dispute the existence of a §2 results
violation as to CD27. Texas diluted the voting strength of Nueces
County Latinos by transforming a minority-opportunity district into
a majority-Anglo district. The State cannot defend that result by
pointing to CD35, because its “creation of an opportunity district
for [Travis County Latinos] without a §2 right offers no excuse for
its failure to provide an opportunity district for [Nueces County
Latinos] with a §2 right.”
League of United Latin American
Citizens v.
Perry, 548 U. S. 399, 430 (2006)
(
LULAC).[
19]
B
1
I turn now to HD32 and HD34. Before the 2011
redistricting, Nueces County had within it two Latino opportunity
districts and part of one Anglo-represented district. 267
F. Supp. 3d, at 767. Due to slower population growth reflected
in the 2010 census, however, Nueces County was entitled to have
within it only two districts. Accordingly, during the 2011
redistricting, the Legislature opted to “eliminate one of the
Latino opportunity districts . . . and draw two districts
wholly within Nueces County—one strongly Latino (HD34) and one a
safe Anglo Republican seat (HD32) to protect [an] incumbent.”
Ibid. “Based on an analysis of the
Gingles
requirements and the totality of the circumstances,” however, the
District Court found that the Legislature could have drawn two
compact minority districts in Nueces County.
Id., at 780.
Namely, the evidence demonstrated that it was possible to draw a
map with “two districts with greater than 50% HCVAP,” that “Latinos
in Nueces County are highly cohesive, and that Anglos vote as a
block usually to defeat minority preferred candidates.”
Id.,
at 777–778.
The District Court then considered two proposed
configurations for those districts: one with two HCVAP-majority
districts located wholly within Nueces County, and another that
required breaking the County Line Rule.
Id., at 777. The
challengers preferred the latter configuration because, according
to their expert, “an exogenous election index” revealed that the
two HCVAP-majority districts wholly within Nueces County did “not
perform suffi- ciently.”
Id., at 778. The District Court did
not accept that expert’s assessment at face value. Instead, it
explained that “an exogenous election index alone will not
determine opportunity,” and so evaluated the expert testing and
ample other evidence and ultimately concluded that the challengers
had “not adequately demonstrated that they lack equal opportunity
in [an alternative] configuration . . . such that a
county line break is necessary.”
Id., at 778, 781. Thus,
although it found that “two HCVAP-districts could have been drawn
that would provide Hispanics with equal electoral opportunity, and
that §2 could require those two districts,” because §2 did not
require the challengers’ requested remedy (
i.e., breaking
the County Line Rule), the District Court had to “consider whether
§2 requires a remedy” and directed the challengers to “consider
their preferred configuration for the remedy stage” that was to
follow (before Texas prematurely appealed).
Id., at 783.
2
The majority purports to accept these factual
findings, and contends that they “show that [HD32 and HD34] do not
violate §2.”
Ante, at 35. Specifically, the majority points
to the fact that the challengers’ “own expert determined that it
was not possible to divide Nueces County into more than one
performing Latino district” without breaking the County Line
Rule, a remedy the District Court concluded was not required by §2.
Ante, at 36 (emphasis in original). “So if Texas could
not create two performing districts in Nueces County and did
not have to break county lines,” the majority reasons, “the
logical result is that Texas did not dilute the Latino vote.”
Ibid. (emphasis in original). In its view, a districting
decision cannot be said to dilute the votes of minority voters “if
the alternative to the districting decision at issue would not
enhance the ability of minority voters to elect the candidates of
their choice.”
Ibid.
At bottom, then, the majority rests its
conclusion on one aspect of the challengers’ expert evidence,
i.e., that it was not possible to place within Nueces County
more than one performing Latino district without breaking county
lines. The majority acknowledges the District Court’s finding that
the challengers had “ ‘failed to show’ that two
majority-Latino districts in Nueces County would not perform,” but
waves away that finding by concluding that the District Court
“twisted the burden of proof beyond recognition” by “suggest[ing]
that a plaintiff might succeed on its §2 claim because its expert
failed to show that the necessary factual basis for the claim could
not be established.”
Ante, at 37. That conclusion is only
possible because the majority closes its eyes to significant
evidence in the record and misrepresents the District Court’s
conclusion about the potential for creating two performing
Latino-majority districts in Nueces County.
The majority, of course, is right on one thing:
The District Court recognized that the challengers’ expert opined
that the two HCVAP-majority districts would not perform based on
the results of an exogenous election index. See
ante, at 36.
But the majority ignores that the District Court rejected that
expert’s conclusion because “the results of an exogenous election
index alone will not determine opportunity,” as “[s]uch indices
often do not mirror endogenous election performance.” 267
F. Supp. 3d, at 778. Instead of “just relying on an exogenous
election index to measure opportunity,” the District Court
“conduct[ed] an intensely local appraisal to determine whether real
electoral opportunity exists.”
Ibid.
That “intensely local appraisal” resulted in a
lengthy analysis that considered, among other facts: that Texas had
a long “history of voting-related discrimination”; that “racially
polarized voting exist[s] in Nueces County and its house district
elections, the level is high, and the high degree of Anglo bloc
voting plays a role in the defeat of Hispanic candidates”; “that
Hispanics, including in Nueces County, suffer a ‘continuing pattern
of disadvantage’ relative to non-Hispanics”; that population growth
in the county “was [driven by] Hispanic growth” and that the “HCVAP
continues to climb”; that the districts “include demographic
distributions strongly favoring Hispanic voters,” and that the
“numbers translate into a significant advantage in house district
elections”; and that data analysis showed that “performance for
Latinos increased significantly in presidential election years,”
which “indicates that the districts provide potential to elect.”
Id., at 778–782.[
20]
The District Court’s focus on the history of the
county as well as its potential performance going forward was an
important point of departure from the challengers’ expert, who
considered only the former. See
LULAC, 548 U. S., at
442 (noting “a significant distinction” in analysis of what
district performance “ ‘had been’ ” compared to “how it
would operate today . . . given the growing Latino
political power in the district”). The District Court also found
the expert’s analysis lacking in other key respects. Namely, the
District Court noted that one of the majority-HCVAP districts
“provides opportunity, at least in presidential election years”;
that “[m]ost of the elections in [the exogenous election] index did
not involve a
Latino Democrat candidate”; and that the
expert “only looked at statewide races and no county races,” even
though it was “conceiv- able that, in competitive local races with
Latino candidates, Hispanic voters would mobilize in significantly
higher numbers.” 267 F. Supp. 3d, at 781 (emphasis in
original).
Based on this review of the evidence, the
District Court concluded “that Hispanics have equal opportunity in
two districts drawn wholly within Nueces County (or at least [the
challengers] failed to show that they do not).”
Id., at 782.
It further explained that, whereas the “evidence shows that two
HCVAP-districts could have been drawn that would provide Hispanics
with equal electoral opportunity, . . . the evidence does
not show that the Legislature was required to break the County Line
Rule to draw what [the challengers] consider to be ‘effective’
districts.”
Id., at 783.
When read in the context of the full analysis
just detailed, it is clear that the District Court was not
“twist[ing] the burden of proof,”
ante, at 37, when it
observed that the challengers “failed to show that” the two
HCVAP-majority districts drawn wholly within Nueces County would
not perform. That statement plainly refers to the challengers’
failure to rebut the finding that the two districts wholly within
Nueces County provided equal electoral opportunity to Hispanics, as
they needed to do to show that §2 required breaking the County Line
Rule. If anything is “twisted . . . beyond recognition,”
ibid., it is the majority opinion’s description of the
District Court’s findings. For while relying on a reference to what
the challengers’ expert opined, the majority wholly ignores the
District Court’s lengthy discussion rejecting that opinion on the
basis of other evidence in the record.[
21]
This Court has been clear that “the ultimate
right of §2 is equality of opportunity.”
Johnson v.
De
Grandy, 512 U. S. 997, 1014, n. 11 (1994). The
District Court found that two HCVAP-majority districts drawn wholly
within Nueces County provided such “equality of opportunity,” and
its findings of fact are not clearly erroneous. Only by selectively
reading the factual record and ignoring the relevant analysis of
those facts can the majority escape the §2 results violation that
flows from those findings.
IV
The Equal Protection Clause of the Fourteenth
Amendment and §2 of the Voting Rights Act secure for all voters in
our country, regardless of race, the right to equal participation
in our political processes. Those guarantees mean little, however,
if courts do not remain vigilant in curbing States’ efforts to
undermine the ability of minority voters to meaningfully exercise
that right. For although we have made progress, “voting
discrimination still exists; no one doubts that.”
Shelby
County, 570 U. S., at 536.
The Court today does great damage to that right
of equal opportunity. Not because it denies the existence of that
right, but because it refuses its enforcement. The Court intervenes
when no intervention is authorized and blinds itself to the
overwhelming factual record below. It does all of this to allow
Texas to use electoral maps that, in design and effect, burden the
rights of minority voters to exercise that most precious right that
is “preservative of all rights.”
Yick Wo v.
Hopkins,
118 U. S. 356, 370 (1886); see
Husted v.
A. Philip
Randolph Institute, 584 U. S. ___, ___ (2018) (Sotomayor,
J., dissenting) (slip op., at 5) (“Our democracy rests on the
ability of all individuals, regardless of race, income, or status,
to exercise their right to vote”). Because our duty is to safeguard
that fundamental right, I dissent.