�Z

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Positiv eAs of., Jun 02, 2 011

STATE OF TEXAS v. UN ITED STATES OF AMERICA

Civil Action N o . 91 -2383 (PMW , U . S.C.A ., JTIG , SS)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

785 F. Supp. 20 1 ; 1992 U.S. D ist. LEXIS 1973

February 25, 1992 , Filed

CORE TERMS: settlement , preclearance , precleared ,voting, voting rights , court-ordered, benchmark , sum-mary judgment , retrogress i ve , discriminatory , partial ,matter of law , declaratory judgment, policy choices , rightto vote, evidentiary hearing, redistricting, retrogression ,submitt ing, objecting , abridging, elections, interim, oralargument, account of race , implemented, inasmuch ,color , primary elections , substantively

COUNSEL: For Plaintiff: Renea Hicks , Javier Gua-j ardo, Special Assistant Att orneys General, P.O . Box12548 , Capitol Station , Austin , Tx 787I1-2548 , (512)463 -2085 .

For Defendants: Steven H. Rosenbaum , David Marble -stone, Gerald W . Jones , Mark A . posner , Voting Section,Civil Rights D i vision , Department of Justice, P . O . Box662 8 , Washin gton , D . C . 20035 -6128 .

For Applicant Intervenors: (appearing informa ll y) ; JoseGarza, George Korbel , TEXAS RURAL LEGAL AID ,Inc ., 201 North St . Mary's , Suite 624 , San Antonio , Tx78205 ; John N. McCamish , Jr., J. Patrick Deely ,McCAMISH, MARTIN & LOEFFLER, P.O. BOX 2999 ,San Antonio , Tx 78299-2999 ; Judith Sanders-Castro ,MEXICAN AMERICAN LEGAL DEFENSE ANDEDUCATION FUND, 140 East Houston , Suite 340 , SanAntonio , Tx 78205 ; James C. Harrin gton, TEXASCIVIL RIGHTS PROJECT , 227 Congres s Avenue , Suite340, Austin, Tx 7 87 0 1-402 1, G . Mariio Moreno , 73315th Street , NW #920 , Washington, D .C . 20005 ; MarkMenezes, 555 13th S tre et , NW, #12 90 Ea st , Washington,D . C . 20004 .

JUDGES: [ ** 1] Wald , Green , S p ork i n

OPINION

[ '` 202] MEMORANDUMORDER

On February 5, 1992, plaintiff filed its Motion forPartial Summary Judgment (and for Oral Hearin g andExpedited Consideration) with Suppo rting Legal Memo-randum . On February 6 , 1992, the court ordered defen-dant to subm i t a memorandum in response to plaintiffsmotion . Defendant filed its Memorandum in Oppositionto State of Texas ' Motion for Partial Summary Judgmenton February 13 , 1 992 . Plaintiff filed a memorandum inreply on February 19, 1992.

Oral argument on plaintiffs motion was held onFebruary 2 1 , 1992 before the district cou rt comprised ofthree judges in accordance w ith 28 U S.C . & 2284 and 42U . S .C . & I973 c . At the conclusion of oral argument, thematter was deemed submitted .

I . BACKGROUND

On September 20 , 1991 , the State of Texas filed itscomplaint s eekin g relief under s ection 5 of the VotingRights Act of 196 5 , 42 U.S . C . S 1973c (19881 ("section5") . Specifically, th e State sought preclearance of its re-districting plan s that had been passed by the legislatureduring the summer of 1991 . Although four plans --governing el e ctions to the Texas House, Texas Senate,Texas Board of Educat i on , and United States Congress--were ori ginally [**2] th e subject of this suit for declara -tory judgment und er section 5 , only one of these--theTexas Sen ate plan --remain s at is sue .

Pr io r t o th e filin g o f thi s suit i n September 1991 , theState subm i tte d i ts o ri g ina l Texas Senate plan- - S . B . 31 --

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to the Attorney Gener al of th e United Sta te s under thealternative preclearance procedure s provided under se c-tion 5 . Accord i n g to the statute, the Attorney General had60 d ay s to obj ect to any part o f th e pr o p ose d pl an ; if n oobjection were filed afte r 60 day s, the p l a n would beprecleared and the State would be fre e to begin imple-menting it . On the 59th day--October 7 , 1991--the Statenotified the Attorney General that i t was withdrawingS .B . 31 from consideration and submitt ing a differentplan in its place .

The new plan submitt ed on October 8 , 1991 was theresult of a se ttlement s igned the previous day betweenthe Texas Attorney General and private plaintiffs in astate court proceeding challengin g the S . B . 31 plan .Quiroz v . Richards , C .A . No . C -4395 -91 -F (332d Jud .Dist. , Hidalgo County) . This same settl ement was en-tered three days later in a parallel state cou rt [ *203] ac-tion . Mena v. Richards , C . A . No . C-454- 91 - F (332d Jud.Dist., Hidal go [ ** 3] County) . The so-called"Quiroz/Mena settlement plan" governing elections tothe Texas Senate was precleared by the Attorney Generalon November 18 , 1991 .

and to order , instead, the implementation of the newlyratified S . B . 1 . On January 10, the court denied the mo-tion, finding that S.B. I " fail[ed] to satisfy the Sec . 2requirements of th e Voting Ri ght s Act . " Terrazas v .Slagle, C i vil Nos . A - 91 -CA-425 , -426 , Order and Judg-ment at 12- 13 (W . D . Tex. Jan. 10, 1992). The Sta tesought a stay of the December 24, 1991 order pendingappeal , but the Supreme Court denied the stay on Janu-ary 16, 1992. Xichards v. Terrazas 116 L Ed . 2d 924112 S . CC . 924 (1992) . The state has appealed both theDecember 24, 1991 and the January 10, 1991 orders tothe [**5] Supreme Court , Richards v. Terrazas 60U . S.L .W . 3554 (U . S . Feb . 18, 1991) ; and the case is cur-rently pending. See Id. at 3560 (questions presented) .

On January 1 0 , 1992, the State submitted S.B. 1 tothe Attorney General for preclearance under section 5 .The Attorney General's deadline for objecting to the pro-posed plan in March 9 , 1992. Under the Terrazas plan,the primary election for the Texas Senate is scheduledfor March 10 , 1992 . The cand idate qualification periodwas closed on January 10 , 1992, and the "early voting"procedure commenced on February 19, 1992 .

On December 17 , 1991 , the settl ement reached inboth Quiroz and Mena was invalidated by the Texas Su-preme Court on the grounds that the trial judge abusedhis discretion in accepting the sett lement without firstconducting an adversary proceeding . The State thereafterrefrained from further implementation of theQuiroz/Mena settlement plan .

On December 24, 1991 , a three-judge federal courtin the Western District of Texas --wh i ch had been con-vened to consider various constitutional and statutorychallenges to the plans passed by the Texas legislature inthe summer of 1991--entered judgment "to provide for avalid and equitable interim state legislative redistrictingplan in the cu rrent circumstance s in which no valid planexists under federal law . " Terrazas v. Slagie, Civil Nos.A-91-CA-425, - 42 6 , -4 2 8, Summary Opinion and Judg-ment at 23 (W .D . Tex . Dec . 24, 1991) . The cou rt orderedprimary elections for the Texas Senate to b e conductedpursuant to its own interim plan which it attached as anappendix to its rulin g. [* *4] Thi s is the so-called Ter-razas plan.

Meanwh i le, the Governor ca ll ed the Texas leg i s la-ture into special ses s ion to cure the procedural defic i en -cies of the Quiroz/Mena settlement plan by means oflegislative enactment . On January 8, 1992 , the legislatureadopted a new Senate plan ("S . B . I"), and the Gove rn ors i gned it into law . It i s undisputed that S . B . I is substan-tively identical to th e Quiroz/Mena settlement plan thatthe Attorney G enera l h ad precleared in November 1991 .

On January 9 , 1992, the State fil e d a mot ion in theTerrazas co u rt to v acate th e December 24 , 1991 order

II . DISCUSSIONUnder section 5 of the Voting Rights Act, no person

may be deprived of a right to vote for failing to complywith a new enactment affecting voting procedure unlessthe new enactment has been precleared. The jurisdictioncovered by the Voting Rights Act has two options: Itmay submit the proposed procedure to the Attorney Gen-eral, who may prevent preclearance only by objecting tothe proposal within 60 days, or it may seek a declaratoryjudgment in the U.S. District Court for the District ofColumbia that the new enactment "does not have thepurpose and will [* " 6] not have the effect of denying orabridging the right to vote on account of race or color."42 U.S.C. & 1973c (1988� .

Plaintiffs burden in a suit for declarato ry judgmentunder section 5 is twofold : First, it must demonstr ate thatthe redistricting plan does not lead to a retrogression inthe position of racial minorities , Beer v . United States

S Ct 1357425 U.S. 130 141 47 L . Ed. 2d 629 96 .1976 ; second, the State must demonstrate (*204] that

the plan is free of a discriminatory purpose . Richm ond v.United States 422 U.S . 358 362 45 L. Ed. 2d 245 5 S.Ct 2296 (1975) ; Busbee v Smith 549 P Supp. 494 516(D . D.C. 1982) , affd mem., 459 U . S 1166 ( 1983). Evenif a change is "ameliorative," it may violate section 5 if it"so discriminates on the basis of race or color as to vio-l ate the Constitution . " Beer 425 U.S . at 141 .

In it s motion for partial summary judgment, theState make s three arguments: First , i t ar gues that there isno l onger a live c o ntrovers y betwee n t he pa rt ie s because

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S . B . I h as already be e n pre cle ared (in the guise of theQu rroz/Mena sett lem ent p lan) , s o there i s nothing for thiscou rt to do but to declar e that the plan i s [ **7] alreadypr e cl eare d . Secon d, the Stat e argu e s alternat i ve ly thatthi s cou rt should exerci s e its authority under section 5and pre c l e ar S . B . I b ecause , a s a matter of law , it cannotbe r etro gress iv e when compared to the benchmark plan--the Quiroz/Mena settlement plan- - to which it is identical .Fin ally , the State argues that S .B . I is not subject to pre-cl e arance because it is not a change in voting procedure s ,for the only difference between it and the earlier pre-cl eared Quiroz/Mena se tt lement plan is in the manner inwhich the State adopted the plan .

A . Has S. B . I Alr eady Been Precleared?

The Attorn ey General precleared the Quiroz/Menasettlement plan in November 1991 . Section 5 is con-cemed about changes in voting procedures that have thepurpose or effect of diluting or abridging the right to voteon account of race . Beer v United States 425 US 130141 47 L . Ed . 2d 629 96 S Ct 1357 (1976�. The factthat the Attorney General implicitly concluded in No-vember 1991 (by not objecting to the proposal) that theQuiroz/Mena settleme nt plan wa s not a change in votingprocedures that d i luted or abridged minority voting rightstells us only that , when compared with the existing [ ** 8]plan in place in November 1991 , the Quiroz/Mena set-tlement plan was not considered to be retrogressive. Butwhether S . B . I is retro gres sive as of the moment it wassubmitted to the A ttorney General on January 10 , 1992 isa different question .

P reclearance involves a comparative inquiry intowhether the change in voting procedures is retrogressivewhen compared with the plan that would otherwise be inforce and effect . See Perkins v Matthews 400 U.S. 379394 27 L Ed 2d 476 91 S. Ct. 43 1 ( 1971 ) ; City oLockhart v . United Stat es 460 U.S 125 132-33 74 L.Ed 2d 863 103 S. Ct . 998 {1983) (proper comparison isbetween new system and sy stem actua ll y in effect priorto adoption of new charter , regardless of what state lawmi gh t have requ ired) . In this case , the plan in effect sinceDecember 24 , 1991 has been the interim court- orderedTerrazas pl an . When preclearing the Quiroz/Mena set-tlement plan in November 1991 , the Attorn ey Generaldid not compare it with the Terrazas plan, which did notyet exist , but rather to the plan otherwise in effect , whichwas the plan governing elections to the Texas Senateprior to the 1990 censu s. The retrogression inquiry maybe different in light of the intervening [ ** 9] impositionof the Terrazas plan . We are thus unable to agree withth e State that S . B . I has already been precleared . '

I We are n ot u nmindful of the consid erabl e con -tro v e rs y surrounding the adoption of the Terrazasp lan . See, e.g., Roberto Suro, Texas Rem apping

Battle Heats Up, Threatening to Singe the De-mocra ts , N . Y . TIMES, Jan . 2 6, 1992, at 14 ; SamAttlesey, Morales Investigates Call Be tweenLawm aker, Judge, DALLAS MORNING NEWS,Feb . 1 , 1992, at lA. Nevert hele ss, issues concern -ing how or why the Terrazas plan was adoptedmust be separated from the substantive merits ofthe plan itself. In order for S . B . I to be pre-cleared , it must not have the effect of abridgingminority voting rights when compared to the Ter-razas plan .

B. Can S. B. I Be Prec lear ed as a Matter ofLaw ?

If we were to determine that the benchmark againstwhich S.B . 1 is to he compared is the Quiroz/Mena set-tlement plan, then the fact that the two plans are identicalwould compel us to conclude , as a[ M205] matter [**10]of law , that S.B . I is not retrogressive under Beer. Butthat would not be the end of the preclearance inqui ry.This court would have to inquire into the second testunder section 5--whether a racially discriminatory pur-pose was among the factors that motivated the State indevising S.B. I. In order for this court to preclear S . B. Iunder section 5, we would have to engage in an inde-pendent inquiry into its constitutionality. The purposesmotivating the QuirozlMena settlement plan are differentfrom those motivating S.B . 1 . Any determination ofwhether S.B . I has a discriminatory purpose would re-quire us to conduct some kind of hearing. In any event, itis not an issue that can be resolved on summary judg-ment . '

2 At oral argument on February 21 , 1992 , coun-sel from the Department of Justice represented tothe court that the Attorney General would mostlikely interpose an objection to S.B . I on thegrounds that the Terrazas court had found it to beviolative of section 2 of the Voting Rights Act,42 U . S .C . & 1973 (1988). See Transcript of Mo-tion for Partial Summary Judgment (filed Feb . 24,1992) at 37-38 . We therefore have no expectationthat S . B. I will be precleared as of March 10 ,1 992, and we anticipate the need for a fu ll evi-dentiary hearing. See Allen v . Stqte Bd of Elec-tions 393 U.S. 544, 549 22 L. Ed . 2d 1 89 S. Ct.817 (1969 ("If the Attorn ey General objects tothe new enactment , the State may sti ll enforce thele g islation upon securing a declarato ry judgmentin the District Cou rt for the D i strict of Colum -bia . ").

[ * "1I ] The Department of Justice argues that theTerrazas plan must be deemed the proper benchmarkplan for s ection 5 preclearance purposes. Unless anduntil it i s held to be unconstitutional or otherwise inv alidunder s ection 2 of the Voting Right s Act , it i s, i n fact, the

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only plan i n effect. It would appear that, at the very least,this cou rt must conduct an evidentiary hearing to deter-mine whether S . B . I i s retrogressive with respect to theTerrazas plan . " A se cti on 5 de claratory judgment shouldbe denied when the el e ctoral plan under review is retro-gressive in compari son to a cou rt-ordered plan that willbe impleme nted absent approval of the statutory plan . "Miss fssippi v Smith 541 F Supp 1329 1333 (D D C1982), appeal dismiss ed, 461 U S 912 77 L Ed 2d 2801 03 S Ct . 1 888 19831 . Inasmuch as a hearing i s re-quised, plaintiff cannot now prevail on summary judg-ment .

Cou rt-ordered plans are generally not subject to sec-tion 5 preclearance , s ee Connor v Johnson 402 U.S.690 691 29 L Ed 2d 268 91 S Ct 1760 (1971� (percuriam) . The only cou rt-ordered plans that are subject topreclearance are those that reflect the pol icy choices ofthe covered jurisdi ction . McDaniel v. Sanchez 452 U.S .130 153 68 L. Ed. 2d 724 101 S. Ct. 2224 (1981);( * * 12J Wise v Lipscomb 437 U.S. 535 548 57 L. Ed.2d 411, 98 S . Ct . 24931978 (Powell, J,, concurring).The record clearly indicates that the court-ordered Ter-razas plan does no t represent the policy choices of theState of Texas , so it cannot reasonably be interpreted tobe a change in voting procedure submitted by the State .Section 5 does not therefore, prevent the implementationof the Terrazas plan . The fact that the Terrazas plan islegall y enforceable without section 5 preclearance andthat it has, in fact , already been implemented, meansthat-- at least until it is vacated--it is , the only benchmarkwe have against which to compare any proposed changein voting procedures .'

3 The Supreme Court has recognized that , al-though not b i nding on this court, the Departmentof Justice's construction of the Voting Rights Actis entitled to considerable deference . See Presleyv . Etowah County Comm 'n, No . 90-711 , slip op.at 16 (U . S . Jan . 27, 1992). According Co JusticeDepartment regulations, court-ordered plans aresubject to preclearance by the Attorney Generalunder section 5 " to the extent that they re flect thepolicy choices of the submitting authority . " 28C F .R 51 . 18a) 19911 . If a court-ordered planfor which preclearance under section 5 is neces-sary (that is, a plan that reflects the policy choicesof the submitting authori ty) has not, i n fact, beenprecleared as required , it cannot serve as abenchmark for subsequent changes submitted bythe jurisdiction. !d. § S I.54(b)(3). Nothing in theregulati o n s precludes the us e of a court-orderedplan that i s not s ubject to precl earance under s ec-ti on 5 - -such as th e Terrazas plan-- as a benchmarkfo r subsequent chan ges i n v otin g procedures.

[**13] C . Is S. B . ISubjec tt o Preclearance?

While it i s true that the principal diffe renc e betweenS . B . I and the Quiroz/Mena [*206] settlement plan is inth e procedural mechani sm by which th ey were "enacted "by the State, that is not the only difference between thetwo plans . They were enacted and subm itted for pre -clearance in different contexts. There i s apparently nodispute that S.B . I and the Terrazas plan differ such that ,if the Terrazas plan i s the benchmark , S . B . 1 repre s ents achange in voting procedure. For this reason , S .B . 1would be subject to preclearance under section 5 .

But even if the Quiroz/Mena settlement plan weredeemed to be the proper benchmark , S .B . I would still besubject to preclearance. While the retrogression analysiswould be simple inasmuch as S.B . I and theQuiroz/iY/ena se ttlement plan are substantively identical,the analysis of whether S . B . 1's purpose was discrimina-tory cannot be resolved simply by recognizing that theQuiroz/Mena sett lement plan had been precleared. At thevery least, S.B . I and the QuirozlMena settlement plandiffer in the way they were enacted . We cannot conclude ,as a matter of law , that the purposes behind [ M*1 4) S .B .1--passed by the legislature after the December 24, 1991order in Terrazas--were nondiscriminato ry simply be-cause the Attorn ey General determined that the purposesbehind the QuirozlMena settlement plan were not dis-criminatory. We could make that conclusion only afteran evidentiary hearing.

IIL CONCLUSIONFor the reasons discussed above , we cannot con -

clude that S.B . I has already been precleared or that S.B.1 may be precleared as a matter of law or that S.B. 1need not be precleared because it is not a change in vot-ing procedures.

Accordingly, it is this 25th day of February , 1992 ,

ORDERED that Plaintiffs motion for part ial sum-mary judgment be, and hereby is , DENIED; and it is

FURTHER ORDERED that a status call to considera schedule for any further proceedings in the case shalltake place on Wednesday, March 18, 1992 at q : 00 p.m.in Courtroom No . 17 at the United States Courthouse,Washington , DC 20002 .

Patr icia M . Wald

United States Circuit Judge

Joyce Hens Green

United State s District Judge

Stanley Sporkin

Uni te d St ates District Jud ge

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ACautionAs of. Jun 02, 2011

STATE OF TEXAS, et at, Plaintiffs, v. UNITED STATES OF AMERICA, et al, De-fendants.

Ci vi l Action No. 91-2383 (Stanley Sporkin)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

802 F. Supp. 48 1 ; 1 992 U.S. Dist. LEXIS 1 1200

July 27, 1 992, Dec idedJuly 27,1992, Fi l ed

DISPOSITION: [**I] The Court will grant Texas'motion for summary judgment and will grant preclear-ance to SB 1 under section 5 of the Voting Rights Act.

CASE SUMMARY:

PROCEDURAL POSTURE: Plaintiff, the State ofTexas, filed suit under § 5 of the Voting Rights Act of1965 , 42 U.S.C . S . § 1973(c) . After permissive interven-tion by two parties, the state filed a motion for summaryjudgment seeking preclearance for its reapport ionmentplan for election of the Texas Senate , and requested re-consideration of the cou rt 's granting inte rv ention to oneparty . An intervenor sought summary judgment chall eng-ing preclearance of the plan .

OVERVIEW: The court reviewed the state's motion tore consider its earlier decision allowing intervention of aparty, and concluded that the party's continued presencein the case would not unduly delay its coming to a con -clusion . Thus , the motion to recons i der was denied . Theintervenor's motion for summary judgment to deny pre-clearance of the state's reapportionment plan rested on itsclaim that an earlier ruling by a distr ict court in Texashad found that the plan violated § 2 of the Voting RightsAct of 1965 (Act), 42 U.S . C.S . & 1973. Thus , the inter-venor alleged that collateral estoppel prohibited preclear-ance of the plan. The cou rt rejected the argument anddenied the intervenor's motion. Collateral estoppel didnot apply because the o th er cou rt 's statem e nt about § 2 ofth e Act was wholly gratuitous. B ec au s e the issue wasne ith e r litigated n o r essential to the reso lution o f th e

other cas e, two elements of collateral estoppel weremissing. Granting summary judgment to the state , thecourt concluded , from the affidavits and statistical re-ports submitted by it , that the reapportionment plan wasnot retrogressive to minority voting rights and did nothave a discriminatory purpose .

OUTCOME : The court denied the state's motion to re-consider its decision to allow intervention, and the inter-venor's motion for summary judgment that the reappor -tionment plan was not entitled to preclearance. The courtgranted summary judgment to the state, finding that itsplan was entitled to preclearance .

CORE TERMS: summary judgment , intervenors , pre -clearance, voting rights, genuine, issue of material fact,senators , reapportionment, voting, oppose , discrimina -tory , reconsider , primary elections , summary affirmance,precleared , collateral , declaring, preclear, estoppel, ask-ing , court- crafted , redistricting, litigated, elect , state law,is sue of law, questions presented , special session, part iesagree , material facts

LexisNexis(R) Head n otes

Civil Procedure > Summary Judgment > Opposition >General OverviewCivil Procedure > Summary Judgment > Standards >Genuine DisputesCivil Procedure > Summary Judgment > Standards >Materiality

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[HNI]Summary judgm ent may be granted where th ecou rt finds that th e re i s no genuine issu e of material factleft to be resolved . Fed . R. Civ . P . 56(c). Neither them ovin g party nor th e oppon ent i s requ i re d to submit affi-davits or to point to other materials in the ca s e to demon-strate that no genuine i s sue of material fact exists . How-ever, a summary j udgment motion may not be opposedby the mere pleadings themselves.

Civil Procedure > Judgments > Preclusion & Fffect ofJudgments > Estoppel > Collateral Estoppel[HN2]Collateral estoppel applies where four conditionsare met : (1) There is identity of issues between the firstand second proceedings ; (2) The issue was fully litigatedin the first proceeding; (3) The i ssue was essential toresolving the case in the first proceeding; and (4) Theparty against whom the earlier ruling is being appliedwas full y represented in the first proceeding.

Governments > Courts > Judicial Precedents[HN3]A summary disposition affirms only the judgmentof the court below, and no more may be read into acourt's action than was es sential to sustain that judgment .

CiviZRiglz ts Law > Voting Rights > PreclearanceConstitutional Law > Elections, Terms & Voting >Race-Based Voting Restrictions[HN7]ln ord er to grant preclearan ce to a reapportionmentpl an a co u rt must make two findings. First, th e p l an maynot be re tro gre ss iv e in terms of minority voting rightswhen compared to the plan that would be in effect werethe plan in question not approved . Second, discrimina -tory purpo s e may not be a motivating factor in the selec -tion of the plan .

JUDGES: Wald , Green, Sporkin

OPINION BY: STANLEY SPORKIN

OPINION

[ *482] MEMORANDUM OPINION

The State of Texas filed this suit seeking relief undersection 5 of the Voting Rights Act of 1965 , 42 U.S.C. &1973c (1988) (" s ection 5") . It originally asked this Courtto preclear four of its newly enacted reapportionmentplans. Quest ions involving preclearance for the plan sgoverning elections to the Texas House , the 'Cexas Boardof Education and the United States Congress have sincebeen resolved. Only the reapportionment plan for theTexas Senate remains at is s ue .

Governments > Courts > Judicial Preceden ts[HN4]A summary affirmance decides only the precisequestions presented on appeal .

Constitutional Law > Equal Protection > Voting Dis-tricts & RepresentativesGovernments > Federal Government > Elections[HNS]When making decisions about the validity of legis-lative policies under the Voting Rights Act, courts arerequired to make detailed factual findings.

Civil Procedure > Trials > Bencl: TrialsConstitutional Law > Elections, Terms & Voting >Race-Based Voting Restrictions[HN6]Because the resolution of a vot i ng dilution claimrequires close analysis of unusually complex factual pat-terns, and because the decision of such a case has thepotential for seriou s interference with state functions , theUnited State s District Court for the District of Columbiahas strictly adhered to th e Fed. R. Civ . P . 52(a) require-ments in voting dilution case s and have required districtcourts to explain with particularity their reason i ng andthe s ubsidiaiy factual con c lu s ion s underlying their rea-sonin g.

Reapportionment for the Texas Senate has been thesubject of extensive litigation in both state and federalcourts . See Texas v. United States, 785 F. Sup.p 201,202-203 (D . D . C . 1992) . Several plans have been pro-posed or adopted by the legislature and the courts in thecourse of these law suits ; however, this Court has previ -ously determined that only two are relevant to this case.The first is the plan that Texas is ask i ng this Court topreclear : SB I which was enacted by a special session ofth e state legislature [* * 2) on January 8 , 1992. The sec-ond is the plan that will serve as the benchmark for asection 5 preclearance analysis: the " Terrazas" planwhich was ordered into effect for the primary electionsby a three-judge federal cou rt in Texas on December 24,1991 . Se e id.

On July 10 , 1992 , the State of Texas filed a motionfor summary judgment asking the Court to declare SB Iprecleare d . It al s o filed a motion to reconsider the ordergranting permissive intervention to Louis Terrazas , TomCraddick , Ernest An gelo, and Robert A. Estrada ("Ter-razas inte rvenors") ' and a motion for judgment on thepleadings . The Terrazas intervenors simultaneously filedth e ir own motion for summary judgment asking theCou rts to declare that SB I is not entitled to preclear -ance . Re sponses were filed on July 24 , 1 992. Th e Cou rth as con s id ered the argum ents of a ll th e part i es and i snow p repared to rul e o n the motio n s.

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802 F. Supp. 481, * ; 19 92 U.S. Dist. LEXIS 11200, * *

I On March 19 , 1992, the Court issue d an orderpermitting two sets of individua l s to i nterv ene inthe case pursuant to Fed. R . Civ . P . 24(b) "subje ctto further order of this Court." Texas v. UnitedStates , Civ . No . 91 -2383 , Order (Mar . 19 , 1 992) .Au st i n N egrete and e igh t other individual s ("N e-grete intervenors") comprise the first set . Theyfavor preclearance of SB I. The Terrazas interve -nors are the second s et . They oppose preclearanceof SB I .

The State of Texas has filed a motion to re-consider the Rule 24 b intervention for the Ter-razas intervenors. As noted by the United States,the Terrazas intervenors have only rais ed an issueof law in their motion for summary judgment andin their opposition to Texas's motion for summaryjudgment . Memorandum of the United States inResponse to PlaintifPs Motion for Reconsidera-tion of Rule 24(b) Intervention Order and forJudgment on the Pleadings, 1-2 . Hence, their con -tinued presence in the case will not result in anyundue delay in reaching a final adjudication onthe merits. Texas 's motion to reconsider the inter-vention will be denied .

[ ** 3] T. SUMMARY JUDGMENT[HNl]Summary judgment may be granted where the

Cou rt fi nds that there is no genuine issue of material factleft to be resolved . Se e Celotex Corp. v. Catrett 477 U S317 91 L. Ed. 2d 265 106 S. Ct. 2548 (1986) ; Fed. R.Civ. P . 56(c) . Neither the moving part y nor the opponentis required to submit affidavits or to point to other mate-rials in the case to demonstrate that no genuine issue ofmaterial fact exists . However, a summary judgment mo -tion may not be opposed by "the mere pleadings them-selves." Celotex Corp., 477 U . S . at 324.

All parties agree , with one exception , ' that there isno genuine issue of material [ *483] fact in dispute inth i s case . See Responses of Defendant-Intervenors Loui sTerrazas, et al, to Motions of Plaintiff State of Texas , 9;Defendant -Intervenor Negrete's Response to PlaintiffsMotion for Summary Judgment, 3; Memorandum of theUnited States in Response to Plaintiffs Motion forSummary Judgment, 1-2; Texas's Opposition to TerrazasIntervenors' Motion for Summary Judgment, 1 n . 2 .However , they disagree over the relevance of particularfacts . The Terrazas intervenors have not submi tt ed anysupport ing materials in conjunction with [ * *4] th eir mo-ti on for summary judgment nor have they filed a state-ment of material facts which are not in i s su e as requiredby the l ocal rul es of thi s Court. See Local Rule 1 08(h) .In stead , th e T e rrazas intervenors m e re ly s tate i n theirm o t ion , "The re i s n o ge n uine i ss u e o f mate ri a l fact n e c -

e ssary to establish that SB I i s not entitl ed to section 5preclearance ." They also oppos e th e State of Texas' mo-tion for summary judgment on purely legal grounds . TheTerraz as interv enors have sta ked th e i r posit i on entire lyon the l ega l claim that thi s Court i s bound by a statementof the three -judge court in Terrazas v. Slagle, Nos . 91-425, 91 -42 6 (W . D . Tex . , Jan . 10 , 1992) declaring SB I inviolation of s ection 2 of the Voting Rights Act . In sum ,they argue that facts pertainin g to the relative merits ofSB I and the Terrazas plan are not material because theCourt is legally compelled to conclude that SB I cannotmeet the standards for preclearance .

2 The State of Texa s opposes the summaryjudgment motion of the Terrazas intervenors onthe grounds that there is a material question offact on the issue of whether SB I violates section2 . We disagree with the State that an issue of factis raised; rather we see it as an issue of lawwhether the Texas court 's decision establishedthat SB I is a violation of section 2 at all. Thiswill be discussed infra at 5-11 .

[**5] The State of Texas does believe that there arematerial facts which must be found in order to grantjudgment in its favor , but it b e lieves those facts are not indispute . In suppo rt of its motion for summary judgment ,the State of Texas has submitted affidavits from expertsattesting to the ability of th e ir plan to meet the standardsfor section 5 preclearance . The United States has filedpapers stating that it does not oppose Texas' motion forsummary judgment ; th e Negrete intervenors have Filed insuppo rt of it . No party has filed any affidavits or pointedto any interrogatories, documents or other factual itemsin the record to contest Texas' statement of facts . TheCourt will address both motions simultaneously becausethey present the same legal questions .

A . Legal Significance of the Statement by the Ter-razas Court

on January 10 , 1992 , the Te rr azas three-judge courtissued an opinion denying a motion by the defendants inthat case to modify or stay the judgment of December 24,] 991 ordering the cou rt 's own reapport ionment plan intoeffect . Judge Garwood dissented . Near the end of themajority's opinion , the following statement appears:

Unt i l formal comment on the substitute [* * 6] Senateplan .. . has been made by the Department of Justice ,elections cannot proceed under the Legislature's pro-posed plan as scheduled under current state law . Alterna-tively , should the opinion of the Department of Justicei s su e in the n ext few days , the Court has already re-viewed testimony and other evidence on th e Sen ate'ss ubstitut e plan durin g th e December h earings and finds itfail s to sa ti s fy the Sec. 2 requirem e nt s o f the Voting

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8 02 F. Supp . 48 1 , *; 1992 U . S . Dist. LEXIS 1 1 20 0 , **

Right s Act . Terrazas v . Slagle, No s. 91 - 42 5, 9 1 -426 , s l .op . at 1 2 (W .D _ Tex . Jan. 10, 1992 ) .

The Terrazas i ntervenors cla i m th at thi s Cou rt i s boundby thi s statem e nt under th e doctrine of collateral e stop -pel . See Connors v . Tanoma Minin2 Co., 293 U . S. App .D.C . 286, 9 5 3 F .2 d 682 , 684 (D . C . Cir . 1992); UnitedStates v . Sherman, 91 2 F . 2d 907 909 (7th Cir . 1990) .The Court rejects this contention on several grounds .

c itizen s to elect representatives of their choosing. SI . op .at 5 , and that "minority voting rights can be enhanced toa greater degree than provided in a Quiroz- s ty le plan . "SI. op . at 9 . It claim s that SB 1 is " an i mpermissibly par-tisan reaction to this Cou rt ' s superior interim plan." SI.op . at 6 . None of these observations support the conclu-sion that SB I violates section 2 . They only support theTerrazas court's conclusion that its plan is superior to theplan chosen by the Texas legislature.

[HN2]Collateral estoppel appl ies where four condi -tions are met:

(1) There is identity of issues between the fi rs t andsecond proceedings .

(2) The issue was fully litigated in the fi rst proceed -ing .

(3) The issue was essential to resolving the case inthe first proceeding .

(4) The party against whom the earlier ruling [" * 7]is being applied was fully represented in the first pro-ceeding.

Two of the four prerequisite s are wholly missing inthi s case . The contingent and gratuitous statement by theTerrazas majority [*484] does not rise to the level offull adjudication on the merits of the section 2 validity ofSB I. The i ssue was not litigated in the Terrazas case .The three-judge cou rt in Texas held a preliminary injunc -tion hearing during which it reviewed the validity of thepreviously enacted plan , SB 31, not SB I. In fact, theTerrazas court explicitly stated in its December 24 , 1991opinion that it did not consider the Quiroz/Mena plan,the substantive equivalent of SB I , because at that time ithad been declared procedurally invalid by the Texas Su-preme Court.' Terrazas v . Slagle, Nos . 91-425 , 91 -426,sl , op . at 6 -7 (Dec . 24 , 1991) . There was no full and fairadjudication of the merits of SB I or its identical prede-cessor, the Qu iro z/Mena plan .

3 The parties agree that SB I and theQuiroz/Mena plan are substantively identical .The Quiroz/Mena plan was ordered into plac e bya Texas state court. The Texas Supreme Cou rtthen ruled that it was procedurally invalid. TheTexas legislature then met in special ses sion inthe first week of January , 1992 , in order to enactthe Quiroz/Mena plan so that i t would be legallye ffective .

[ ** 8] Indeed the "facts" that are cited in the Janu-ary 1 0 opinion do no t go to the question of se ction 2 vi -ability at all , rather they concern section 5 issue s. TheTerraza.r c ourt c ompares its plan to the Quiroz/M enap l an , substantively the same a s SB ], and conclude s thati ts plan prov id es a "greater oppo rt unity " for mi no r i ty

Moreover , the January 10 statement declaring thatSB I violates sect ion 2 was not essential to a resolutionof the issues raised in that case. At that point , the onlyquestion for the Terrazas cou rt to decide was whether itshould stay implementation of its own plan and allow thestate to proceed with the preclearance process for SB Ior instead require that [* * 9) the primary elections beheld under the court- crafted plan. The court's statementabout the Texas legislature's plan was posed "in the al-ternative" and was contingent upon an event that had notyet occurred . In deciding whether to stay the implemen -tation of its own court-crafted plan, the Court did notneed to cons i der whether SB I violated section 2 . JudgeGarwood made this point in h is dissent where he sug-gested that the court stay implementation of its own plan,await a preclearance decision from the Department ofJustice , and consider the section 2 issue only after SB 1was precleared . The section 2 question would have beenmoot if the Department of Justice refused to preclear SB1. The Terrazas majority itself says that its principalconcern i s delay and that " It does not appear that pre-clearance of any substitute plans can be obtained in atimely fashion so as to allow the 1992 primaries to pro-ceed in March as provided by existing state law . " Ter-razas v. Slagle, Nos . 91-425, 91-426, A. op . at 10 (W.D.Tex . Jan. 1 0 , 1992). In sum, there was no need for theTerrazas cou rt to rule on the section 2 issue in order todecide whether to stay the implementation oPthe [**]0]court-ordered electoral plan.

The Terrazas intervenors also cla im that the Su-preme Court affirmed the section 2 statement by the Ter-razas majority when it granted summary affirmance inthe appeal filed by the State of Texas . They argue thatSupreme Cou rt affirmance made the decision of the Ter-razas cou rt including its . ... sentence about SB I finaland of "sufficient firmness to be accorded conclusiveeffect . " Motion for Summary Judgment of Defendant-Intervenors Louis Terrazas, et at, 4 , citing InterconnectPlanning Corp. v. Fe il 774 F.2d 1132, 1135 (Fed. Cir.1985) . But , a s the Department of Justice po i nts out per-suasively in i ts mot ion opposing summary judgment forthe Terrazas plaintiffs , the Supreme Court did not affirmany specific statements of the Terrazas court.

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8 02 P. Supp . 4 8 1 , *; 1 992 U. S . Dist. LEXIS 11200 , **

[HN3] [ * 485] A summary dispositi on a ffirms on ly thejudgment of th e cou rt below , and no more may be readinto [the Supreme Cou rt ' s ] a ction than was essential tosu stain th at judgment . Stat em ent o f the United State sConcerning E ffe ct of Supreme Court Act i on c itingAnderson v. Celebrezze, 460 U . S . 780, 785 n . 5 75 L .Ed. 2d 547 , ]03 S . Ct . 1564 (19831 .

[HN4]A summary affi rmanc e decides only the preci s equestion s [ ** 11] pres ented on appeal . See Mandel v.Bradlev 432 U S 173, 176, 53 I, . Ed. 2d 199, 97 S. Ct.2238 (1977) . Given the questions presented in the appealfrom the Terrazas decision, " the summary affirmanceverifies only that the Terraz as cou rt was correct in grant-ing a stay under the circumstances that existed on Janu-ary 10 , i . e . before the newly legislated plan , SB 1, hadbeen precleared and at a time when it appeared that wait-ing for preclearance would cause delay harmful to theelectoral proces s .

4 The juri s dictional statement fi led by the Stateof Texas presented the followin g questions :

1. May a local three-judge federal districtcou rt acting under section 5 of the Voting RightsAct subs titute a cou rt-crafted redistricting planfor a leg islat i vely approved plan that obtaineds ection 5 preclearance from the United StatesDepartment of Justice?

2 . Does preclearance from the United StatesDepartment of Justice establish prima facie valid-ity of a redi stricting plan so as to preclude interiminjunctive relief under section 2 of the VotingR ights Act absent extreme an d unique circum-stances?

( ** 12) Under the doct rine of collateral estoppel ,th is Court is not bound by the statement of the Terrazascou rt in its January 10 opinion declaring that SB I vio-late 5 section 2. The i ssue was not fully litigated by theTerrazas cou rt, and a decision on the section 2 questionwas not essent ial to the is s ue that cou rt had to resolve inits January 10 opinion. [HNS ] V✓hen making decisionsabout the validi ty of l egislative policies under th e VotingRights Act, courts are required to make detailed factualfi ndin gs. As the Fifth Circuit itself has s aid ,

[HN6]Because the resolution of a voting dilutionclaim requires close analysis of unusuall y complex fac-tual patterns , and because the decision of such a case hasthe potential for serious interference with state function s,we have strictly adhered to the rule 52 a requirements invoting diluti on cas e s and have required district cou rts toex pl ain w i t h parti c ula r i ty their re asoning and the subs i di-ary factual con cl u sio n s u n d e rl y in g th e i r reasonin g. Crossv_Baxt er, 604 F .2 d 875, 8 7 9 ( 5 th Cir . 197� (c itation s

omitted), vacat ed on other grounds, 704 F .2 d 143 (5thCir. 1983); see also Westwego Citizens for Better Gov-ernment v Westwe¢o 872 F.2d 1201 , 1203 (5th Cir .1989 ; [ ** ]3) Velasquez v . City otA b ilen e 725 F .2 d1017, 1 020 (5th Cir. 1984) .

In our view, the Terrazas majority did not adhere to thisdirective. It made a blanket statement without factualunderpinnings or explanation about the section 2 invalid-ity of SB I . While expressing clearly its preference forits own plan over the plan enacted by the legislature theTerrazas court failed to substantiate in any way its legalobjections to the legislature's plan , instead relying prin-cipally on practical considerations like delay in reachingits decision. ' Thus , we must take the statement for whatit is worth, in its conte xt and barren of specific factualfindings. ' Since the Terrazas intervenors stake their mo-tion for summary judgment entirely on the propositionthat the Court is bound by the Terrazas court 's statementthat SB 1 violates section 2 , their motion fails by neces-sity and , accordingly , will be denied .

5 The Fifth Circuit has also made clear that leg-islatively enacted plans are preferable to cou rt -imposed plans except in the most unusual of cir-cumstances. See Seastrunk v. Burns, 772 F .2d143 (Sth Cir . 1985) .

[**14l6 We note also that Judge Nowlin has sincerecused himself from any further part icipation inthe case .

B . Preclearance ofSB I

[HN7]In order to grant preclearance to a reappor-tionment plan a court must make two findings. First , theplan may not be retrogressive in terms of minority votingrights when compared to the plan that would be in effectwere the plan in question not approved . See Beer v.United States, 425 U S. 130 141,47 L . Ed . 2d 629,96 S .Ct. 1357 (1976) . As noted above , SB I is th e plan inquestion, and the plan that would be in effect, thebenchmark, is the Terrazas plan . See Texas v. UnitedStates, 785 F . Supp. 201 (D.D.C. 1992) . Second , dis-criminatory purpose may not be a motivating factor inthe selection of the plan . See City of Richmond v. UnitedStates, 422 U . S. 358 , 378 45 L . Ed . 2d 245, 95 S. Ct.2296 c, 422 U.S . 358 45 L . Ed. 2d 245, 95 S . Ct. 2296(1975). As an initial matter , we note that the Departmentof Justice has posed no objection to SB 1. See Notice ofFiling of Section 5 Determination (July 21 , 1992) . Wereit not for the presence of the intervenors in this litigation,there would be no dispute . However, given [ **1 5] theunusual posture of this case , the Cou rt will proceed torul e on Texas' motion .

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802 F . Supp . 4 81 , *; 1 992 O . S . Dist. LEXIS 11 2 00, **

The State of Texas ha s submi tted detailed affidavitsto prov e that SB I meets the nonretrogression standard .Lynn Moak and Allan Lichtman are both experts in dataan a ly s i s a nd re di s trictin g. Mr . Moak performed a thor-ough comparison of SB I and the Terrazas plan . Mr .Lichtman then verified the accuracy and reliability ofMr . Moak 's work. Mr . Moak concluded that SB I in-creases the number of di s tricts in which minorities canelect candidates of their own choosing from e i ght tonine . It cre ates an additional Hispanic distr ict as com-pared to the Terrazas plan. Review of recent primaryelection voting data also revealed "major differences .. .in the pattern of Black and Hispan ic support. " Affidavitof Lynn Moak, Motion for Summary Judgment , 3 . Heconcluded that because of this phenomenon "mixed mi -nority" districts would not actually work and could notbe considered minority districts . As a result, two of thedis tricts identified in the Terrazas plan as minority dis-tr icts and one of the dis tricts identified in SB 1 as a mi-no rity district failed to qualify as minority districts underthe standards [ ** 16] of'Mr. Moak's analysis. In District13 in Harris County , SB 1's version does have a reducedAfrican-American voting age population , however, Mr .Moak's regre ss ion model indicates that African -American voters will still be able to elect representativesof their choice . Also , the modifications in District 13allow for the creation of Distr ict 6 which will be a His-panic district and allow for the possibility that Di strict 15may also become an A frican-American district .

Having reviewed Mr . Moak's work as well as the af-fidavit of Pro fessor Lichtman who confirms that Mr.Moak's methodolo gy is well-grounded in the literatureand consistent with the methodology he uses in work forthe Department of Justice , the Court credits these state-ments and adopts Mr . Moak's affidavit as its findings offact .

As for the question of discriminatory purpose , Texashas submitted the affidavits of seven state senators andrepresentatives who participated in the creat i on and pas-s age of SB I . ' Six of these officeholders are themselvesA frican American or Hispanic . The seventh is the DeanoFthe Texas Senate . All o£these individuals gave swornstatements affirming that there was no discriminatorypurpose [* * 17] behind SB I. A ll of them note that SB Iis endorsed by the majority minority organizations a inTexas . The Court credits these statements and finds thatthere i s no discriminatory purpose underlying SB 1 .

7 The individuals subm itt ing affidavits areSenator Gonzalo Barrientos, Senator ChetBrool<s, Senator Rodney Ellis, Senator EddieBernice Johnson , Senator Judith Zaffirini, Repre-sentative Eddie Cavazos, and RepresentativeRom an Mart in ez.

8 As the phrase implie s , a " maj ority minorityorganization" is one where the maj o rity of themembers of the organization are also members ofa minority group . Th e NAACP would be an ex-ample .

The Terrazas i ntervenors , the only remaining partythat opposes Texas' motion for summary judgment, havenot filed any affidavits or other materials to raise a genu-ine i ss ue of material fact. They rest on the same legalargument that they made in their own motion for sum-mary judgment and point only to the statement of theTerrazas court in its January 10 opinion as the basis fortheir [ ** 18 ] claim th at there is a genuine triable issueconcerning motive remaining ['487] in th is case. TheCou rt has already rejected this argument. We are notbound by the Terrazas court's statement, and it does not,without more, raise a genuine issue of material fact . Thestatement of the Terrazas court is conclusory only , and iti s not accompanied by any specific reference s to testi-mony , evidence or personal knowledge. See Memoran-dum of the United States in Response to Motion forSummary Judgment of Defendant-Intervenors Terrazas,et al, 6 n . 3. Texas has offered the carefully researchedopinion of experts, and the Terrazas intervenors havepresented neither witnesses nor documents that would beable to contradict them .

Accordingly, the Court will grant Texas' motion forsummary judgment and will grant preclearance to SB Iunder section 5 of the Voting Rights Act .

DATE: 7/27/92

Patricia M . Wald

United States Court of Appeals

Joyce Hens Green

United States District Court

Stanley Sporkin

United State District Court

ORDER - July 27, 1992, Filed

For the reasons given in the foregoing opinion , it i sthis 27 day of 1992 , hereby

ORDERED that the motion by Louis Terrazas , TomCraddick , [ ** ] 9] and for summary judgment is denied ;and it is

FURTHER ORDERED that the motion by the Stateof Texas to reconsider the decision to allow the Terrazasparties to intervene in the case is denied; and it is

FURTHER ORDERED that the motion by th e Stateof Texas for summary judgment is granted .

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802 F . Supp . 481 , *; 1992 U . S . Di s t . LEXIS 11 2 00 , **

It is hereby DECLARED that SB I does not have United States Court of Appealsthe purpose and will not have the e ffect of deny ing or Joyce Hens Greenabridging the right to vote on account of race or color ,nor is SB I in con tr avention of the guarantees s et fo rt h in United States District Court42 U.S.C. § 1 973b( fl (2).

Stanley Spork i nPatricia M . Wald

United States District Court

Page 7

Full Text request : 861 F. Supp . 1304

Multiple documents satisfy your request. Get & Print could n o t determine which one of the following to retrieve:

1 . Vera v . Richards , C . A . No . H -94 -0277 , UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICTOF TEXAS , HOUSTON DIVISION, 86 1 F . Supp . 1304 ; 1 994 U . S . Dist . LEXIS 1 233 4, Septemb er 2, 1994 , Decided ,Sc tember 2 , 1994, Fil ed , Repo rte d at : 861 F . Supp . 1304 at 135 1 .

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Analysi sAs of. Jun 02 , 2011

2 . Vera v . Richards, C .A . No . H-94-0277 , UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICTOF TEXAS , HOUSTON DIVISION, 86 1 F . Supp . 1304 ; 1994 U . S . Di st . LEXIS 12368 , August 1 7 , 1994 , Decided ,August 1 7, 1994 , FiledA

CautionAs o f: Jun 02, 2011

OVERVIEW: In the voters ' action against the state officials alleging that the congressional redistrictin g plan wasunconstitutionally drawn a long racial lines, the cou rt found that thre e of the 24 districts were uncon s titutionally raciallygenymandered .-

CORE TERMS: redistricting, voter, ¢ongessionai districts, spli t, incumbent, districting, votin g rights, votin g,congressman's , map ...

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