SUPREME COURT OF THE UNITED STATES
Nos. 17–586 and 17–626
GREG ABBOTT, GOVERNOR OF TEXAS, ET AL., APPELLANTS
SHANNON PEREZ, ET AL.
GREG ABBOTT, GOVERNOR OF TEXAS, ET AL., APPELLANTS
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.
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
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.,
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
, 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.
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
, the District Court issued a ruling on the merits against the State. Like in Gunn
, the District Court was clear that those violations required a remedy. Like in Gunn
, 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
, 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
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).
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,
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,
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
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.
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
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.
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.
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,
] 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.
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.
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
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  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
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
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.
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
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
, 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
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,
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.,
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.
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).
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,
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,
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.
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.
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.,
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
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.
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
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.
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
548 U. S. 399, 430 (2006) (LULAC
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.,
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.,
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.,
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.,
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.
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
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.