ABBOTT, GOVERNOR OF TEXAS, ET AL. v. PEREZ ET AL.
No. 17–586
SUPREME COURT OF THE UNITED STATES
June 25, 2018
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
The Texas Legislature’s 2011 plans were immediately tied up in litigation and never used. The case was assigned to a three-judge court (Texas court). Texas also submitted the plans for preclearance to the District Court for the District of Columbia (D. C. court). The Texas court drew up interim plans for the State’s rapidly approaching primaries, giving no deference to the Legislature’s plans. Texas challenged the court-ordered plans in this Court, which reversed and remanded with instructions for the Texas court to start with the Texas Legislature’s 2011 plans but to make adjustments as required by the Constitution and the VRA. The Texas court then adopted new interim plans. After the D. C. court denied preclearance of the 2011 plans, Texas used the Texas court’s interim plans for the 2012 elections. In 2013, the Legislature repealed the 2011 plans and enacted the Texas court’s plans (with minor modifications). After Shelby County v. Holder, 570 U. S. 529, was decided, Texas, no longer covered by §5, obtained a vacatur of the D. C. court’s preclearance order. But the Texas court did not dismiss the case against the 2011 plans as moot. Instead, it allowed the plaintiffs to amend their complaint to challenge the 2013 plans and held that their challenges to the 2011 plans were live. Texas conducted its 2014 and 2016 elections under the 2013 plans. In 2017, the Texas court found defects in several of the districts in the 2011 federal congressional and State House plans (the State Senate plan is not at issue here). Subsequently, it also invalidated multiple Congressional (CD) and House (HD) Districts in the 2013 plans, holding that the Legislature failed to cure the “taint” of discriminatory intent allegedly harbored by the 2011 Legislature. And the court relied on that finding to invalidate several challenged 2013 districts. The court also held that three districts—CD27, HD32, and HD34—were invalid under §2 of the VRA because they had the effect of depriving Latinos of the equal opportunity to elect their candidates of choice. And it found that HD90 was a racial gerrymander based on changes made by the 2013 Legislature. It gave the state attorney general three days to tell the court whether the Legislature would remedy the violations; and if the Legislature did not intend to adopt new plans, the court would hold remedial hearings.
Held:
1. This Court has jurisdiction to review the orders at issue. Pp. 11–21.
(a) The Texas court’s orders fall within
(b) The text of the orders and the context in which they were issued make clear that they qualify as interlocutory injunctions under
2. The Texas court erred in requiring the State to show that the 2013 Legislature purged the “taint” that the court attributed to the defunct and never-used plans enacted by a prior legislature in 2011. Pp. 21–32.
(a) Whenever a challenger claims that a state law was enacted with discriminatory intent, the burden of proof lies with the challenger, not the State. Reno v. Bossier Parish School Bd., 520 U. S. 471, 481. In redistricting cases, the “good faith of [the] state legislature must be presumed.” Miller v. Johnson, 515 U. S. 900, 915. The allocation of the burden of proof and the presumption of legislative good faith are not changed by a finding of past discrimination, which is but “one evidentiary source” relevant to the question of intent. Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 267. Here, the 2011 plans were repealed, and not reenacted, by the 2013 Legislature. Nor did it use criteria that arguably carried forward the effects of the 2011 Legislature’s discriminatory intent. Instead, it enacted, with only small changes, the Texas court plans developed pursuant to this Court’s instructions. The Texas court contravened these basic burden of proof principles, referring, e.g., to the need to “cure” the earlier Legislature’s “taint” and concluding that the Legislature had engaged in no deliberative process to do so. This fundamentally flawed approach must be reversed. Pp. 21–25.
(b) Both the 2011 Legislature’s intent and the court’s interim plans are relevant to the extent that they give rise to—or tend to refute—inferences about the 2013 Legislature’s intent, but they must be weighed together with other relevant direct and circumstantial evidence of the Legislature’s intent. But when this evidence is taken into account, the evidence in the record is plainly insufficient to prove that the 2013 Legislature acted in bad faith and engaged in intentional discrimination. Pp. 25–32.
3. Once the Texas court’s intent finding is reversed, there remain only four districts that were invalidated on alternative grounds. The Texas court’s holding as to the three districts in which it relied on §2’s “effects” test are reversed, but its holding that HD90 is a racial gerrymander is affirmed. Pp. 32–41.
(a) To make out a §2 “effects” claim, a plaintiff must establish the three “Gingles factors”: (1) a geographically compact minority population sufficient to constitute a majority in a single-member district, (2) political cohesion among the members of the minority group, and (3) bloc voting by the majority to defeat the minority’s preferred candidate. Thornburg v. Gingles, 478 U. S. 30, 48–51. A plaintiff who makes that
(1) The Texas court held that CD27 violates §2 because it has the effect of diluting the votes of Nueces County Latino voters, who, the court concluded, should have been included in a Latino opportunity district rather than CD27, which is not such a district. Plaintiffs, however, could not show that an additional Latino opportunity district could be created in that part of Texas. Pp. 33–35.
(2) The Texas court similarly erred in holding that HD32 and HD34, which make up the entirety of Nueces County, violate §2. The 2013 plan created two districts that lie wholly within the county: HD34 is a Latino opportunity district, but HD32 is not. The court’s findings show that these two districts do not violate §2, and it is hard to see how the ultimate Gingles vote dilution standard could be met if the alternative plan would not enhance the ability of minority voters to elect the candidates of their choice. Pp. 35–38.
(b) HD90 is an impermissible racial gerrymander. HD90 was not copied from the Texas court’s interim plans. Instead, the 2013 legislature substantially modified that district. In 2011, the Legislature, responding to pressure from counsel to one of the plaintiff groups, in-creased the district’s Latino population in an effort to make it a Latino opportunity district. It also moved the city of Como, which is predominantly African-American, out of the district. When Como residents and their Texas House representative objected, the Legislature moved Como back. But that decreased the Latino population, so the Legislature moved more Latinos into the district. Texas argues that its use of race as the predominant factor in HD90’s design was permissible because it had “good reasons” to believe that this was necessary to satisfy §2, Bethune-Hill, 580 U. S., at ___. But it is the State’s burden to prove narrow tailoring, and Texas did not do so on the record here. Pp. 38–41.
No. 17–586, 274 F. Supp. 3d 624, reversed; No. 17–626, 267 F. Supp. 3d 750, reversed in part and affirmed in part; and cases remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and GORSUCH, JJ., joined. THOMAS, J., filed a concurring opinion, in which GORSUCH, J., joined. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, BREYER, and KAGAN, JJ., joined.
GREG ABBOTT, GOVERNOR OF TEXAS, ET AL., APPELLANTS v. SHANNON PEREZ, ET AL.
Nos. 17–586 and 17–626
SUPREME COURT OF THE UNITED STATES
June 25, 2018
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
JUSTICE ALITO delivered the opinion of the Court.
Before us for review are orders of a three-judge court in the Western District of Texas effectively directing the State not to conduct this year’s elections using districting plans that the court itself adopted some years earlier. The court developed those plans for use in the 2012 elections pursuant to our directions in Perry v. Perez, 565 U. S. 388 (2012) (per curiam). We instructed the three-judge court to start with the plans adopted by the Texas Legislature in 2011 but to make adjustments as required by the Constitution and the Voting Rights Act. Id., at 392–396. After those plans were used in 2012, the Texas Legislature enacted them (with only minor modifications) in 2013, and the plans were used again in both 2014 and 2016.
Last year, however, the three-judge court reversed its prior analysis and held that some of the districts in those plans are unlawful. After reviewing the repealed 2011 plans, which had never been used, the court found that they were tainted by discriminatory intent and that the 2013 Legislature had not “cured” that “taint.”
We now hold that the three-judge court committed a fundamental legal error. It was the challengers’ burden to show that the 2013 Legislature acted with discriminatory intent when it enacted plans that the court itself had produced. The 2013 Legislature was not obligated to show that it had “cured” the unlawful intent that the court attributed to the 2011 Legislature. Thus, the essential pillar of the three-judge court’s reasoning was critically flawed.
When the congressional and state legislative districts are reviewed under the
I
A
The 2010 decennial census revealed that the population of Texas had grown by more than 20% and the State was therefore apportioned four additional seats in the United States House of Representatives. C. J. S. 369a.1 To accommodate this new allocation and the population changes shown by the census, the Legislature adopted a new congressional districting plan, as well as new districting maps for the two houses of the State Legislature.
Redistricting is never easy, and the task was especially
complicated in Texas in 2011. Not only was the Legislature required to draw districts that were substantially equal in population, see Perry, supra, at 391–392; Reynolds v. Sims, 377 U. S. 533 (1964); Wesberry v. Sanders, 376 U. S. 1 (1964), and to comply with special state-law districting rules,2 but federal law imposed complex and delicately balanced requirements regarding the consideration of race.
Then, as now, federal law restricted the use of race in making districting decisions. The Equal Protection Clause forbids “racial gerrymandering,” that is, intentionally assigning citizens to a district on the basis of race without sufficient justification. Shaw v. Reno, 509 U. S. 630, 641 (1993). It also prohibits intentional “vote dilution”—“invidiously . . . minimiz[ing] or cancel[ing] out the voting potential of racial or ethnic minorities.” Mobile v. Bolden, 446 U. S. 55, 66–67 (1980) (plurality opinion).
While the Equal Protection Clause imposes these important restrictions, its application in the field of districting is complicated. For one thing, because a voter’s race sometimes correlates closely with political party preference, see Cooper v. Harris, 581 U. S. ___, ___–___ (2017) (slip op., at 19–20); Easley v. Cromartie, 532 U. S. 234, 243 (2001), it may be very difficult for a court to determine whether a districting decision was based on race or party preference. Here, the three-judge court found that the two factors were virtually indistinguishable.3
At the same time that the Equal Protection Clause
restricts the consideration of race in the districting process, compliance with the Voting Rights Act of 1965,
On top of this, Texas was (and still is) required to comply with §2 of the VRA. A State violates §2 if its districting plan provides “‘less opportunity’” for racial minorities “‘to elect representatives of their choice.’” League of United Latin American Citizens v. Perry, 548 U. S. 399, 425 (2006) (LULAC). In a series of cases tracing back to Thornburg v. Gingles, 478 U. S. 30 (1986), we have interpreted this standard to mean that, under certain circumstance, States must draw “opportunity” districts in which minority groups form “effective majorit[ies],” LULAC, supra, at 426.
Since the Equal Protection Clause restricts consideration of race and the VRA demands consideration of race, a legislature attempting to produce a lawful districting plan is vulnerable to “‘competing hazards of liability.’” Bush v. Vera, 517 U. S. 952, 977 (1996) (plurality opinion). In an effort to harmonize these conflicting demands, we have assumed that compliance with the VRA may justify the consideration of race in a way that would not otherwise be allowed. In technical terms, we have assumed that complying with the VRA is a compelling state interest, see,
e.g., Bethune-Hill v. Virginia State Bd. of Elections, 580 U. S. ___, ___ (2017) (slip op., at 13); Shaw v. Hunt, 517 U. S. 899, 915 (1996), and that a State’s consideration of race in making a districting decision is narrowly tailored and thus satisfies strict scrutiny if the State has “‘good reasons’” for believing that its decision is necessary in order to comply with the VRA. Cooper, supra, at ___ (slip op., at 3).
B
Facing this legal obstacle course, the Texas Legislature in 2011 adopted new districting plans, but those plans were immediately tied up in litigation and were never used. Several plaintiff groups quickly filed challenges in the District Court for the Western District of Texas, arguing that some of the districts in the new plans were racial gerrymanders, some were based on intentional vote dilution, and some had the effect of depriving minorities of the equal opportunity to elect the candidates of their choice. This case was assigned to a three-judge court, as required by
The situation was further complicated by the requirement that Texas obtain preclearance of its new plans. To do this, Texas filed for a declaratory judgment in the District Court for the District of Columbia. See Texas v. United States, 887 F. Supp. 2d 133 (2012). (We will call this court “the D. C. court.”) By early 2012, the D. C. court had not yet issued a decision, and Texas needed usable plans for its rapidly approaching primaries. Accordingly, the Texas court drew up interim plans for that purpose. Perez v. Perry, 835 F. Supp. 2d 209 (2011). In
the interest of the collective public good.” Id., at 212.5
Texas challenged those court-ordered plans in this Court, and we reversed. Perry v. Perez, 565 U. S. 388 (2012) (per curiam). Noting that “[r]edistricting is ‘primarily the duty and responsibility of the State,’ ” we held that the Texas court should have respected the legislative judgments embodied in the 2011 plans to the extent allowed by the Constitution and the VRA. Id., at 392–399.
We remanded the case with very specific instructions. The Texas court was told to start with the plans adopted by the Legislature but to modify those plans as needed so as “not to incorporate . . . any legal defects.” Id., at 394. With respect to claims under the Constitution or §2 of the VRA, the District Court was told to change a district if the plaintiffs were likely to succeed on the merits of their challenge. Ibid. And with respect to §5 claims, the court was instructed to make whatever changes were needed to obviate any legal claim that was “not insubstantial.”6 Id., at 395. Thus, our instructions, in an abundance of caution, demanded changes in the challenged 2011 plans without proof that those changes were actually required by either the Constitution or the VRA.
On remand, the Texas court ordered additional briefing and heard two more days of argument. App. 29a, 35a–50a; Order in Civ. No. 11–cv–00360, Doc. No. 616. It issued two opinions, totaling more than 70 pages, and analyzed disputed districts in detail. C. J. S. 367a–423a;
H. J. S. 300a–315a. While stressing the preliminary nature of its determinations, see C. J. S. 368a; H. J. S. 314a–315a, the court found that some districts required change and that others were lawful, C. J. S. 367a–423a; H. J. S. 300a–315a. The court then adopted plans for the State’s congressional districts and for both houses of the State Legislature. (The plan for the State Senate is not at issue.)
Both the congressional plan and the plan for the Texas House departed significantly from the State’s 2011 plans. At least 8 of the 36 congressional districts were markedly altered, and 21 districts in the plan for the Texas House were “substantially” changed. H. J. S. 314a; C. J. S. 397a–408a.
In August 2012, the D. C. court denied preclearance of the plans adopted by the Legislature in 2011, see Texas v. United States, supra, so the State conducted the 2012 elections under the interim plans devised by the Texas court. At the same time, Texas filed an appeal in this Court contesting the decision of the D. C. court,7 but that appeal ultimately died for two reasons.
The Governor called a special session to do just that, and the Legislature complied. One of the legislative sponsors, Senator Seliger, explained that, although “‘the Texas
Legislature remains confident that the legislatively-drawn maps adopted in 2011 are fair and legal . . . , there remain several outstanding legal questions regarding these maps that undermine the stability and predictability of the electoral process in Texas.’” 274 F. Supp. 3d 624, 649, n. 40 (2017). Counsel for one of the plaintiff groups, the Mexican American Legal Defense and Education Fund (MALDEF), testified in favor of the plans. C. J. S. 436a–439a. The 2013 Legislature then repealed the 2011 plans and enacted the Texas court’s interim plans with just a few minor changes. The federal congressional plan was not altered at all, and only small modifications were made to the plan for the Texas House. C. J. S. Findings 231a–232a.
On the day after the Legislature passed the new plans and the day before the Governor signed them, this Court issued its decision in Shelby County v. Holder, 570 U. S. 529 (2013), which invalidated the coverage formula in §4 of the Voting Rights Act. Now no longer subject to §5, Texas obtained a vacatur of the D. C. court’s order on preclearance. 274 F. Supp. 3d, at 634–635, and n. 11.
With the never-effective 2011 plans now repealed and any preclearance issues overcome by events, the State argued in the Texas court that the plaintiffs’ case against the 2011 plans was moot. In September 2013, the Texas court allowed the plaintiffs to amend their complaints to challenge the 2013 plans, but the court held that their challenges to the 2011 plans were still alive, reasoning that the repeal of the 2011 plans represented the “voluntary cessation” of allegedly unconstitutional conduct.8
Texas conducted its 2014 and 2016 elections under the plans that had been preliminarily approved by the Texas court and subsequently adopted (with only minor changes) by the Legislature in 2013. But in March and April 2017,
after multiple trials, the Texas court issued a pair of rulings on the defunct 2011 plans. The court reaffirmed the conclusions it had reached in 2012 about defects in the 2011 plans, and it went further. Contrary to its earlier decision, it held that Congressional District (CD) 35 is an impermissible racial gerrymander and that CD27 violates §2 of the Voting Rights Act because it has the effect of diluting the electoral opportunities of Latino voters. C. J. S. 181a, 193a–194a. Previously, the court had provided detailed reasons for rejecting the very arguments that it now accepted. Id., at 409a–423a. Similarly, the court held that multiple districts in the plan for the Texas House were the result of intentional vote dilution. These included districts in the counties of Nueces (House District (HD) 32, HD34), Bell (HD54, HD55), and Dallas (HD103, HD104, HD105). H. J. S. 275a–276a.9
In reaching these conclusions, the court pointed to the discriminatory intent allegedly harbored by the 2011
Legislature, and it attributed this same intent to the 2013 Legislature because it had failed to “engage in a deliberative process to ensure that the 2013 plans cured any taint from the 2011 plans.” 274 F. Supp. 3d, at 645–652; 267 F. Supp. 3d, at 757. The court saw “no indication that the Legislature looked to see whether any discriminatory taint remained in the plans.” 274 F. Supp. 3d, at 649. And it faulted the State because it “did not accept [findings of the D. C. court] and instead appealed to the Supreme Court.” Ibid. Seeing no evidence that the State had undergone “a change of heart,” the court concluded that the Legislature’s “decision to adopt the [District Court’s] plans” was a “litigation strategy designed to insulate the 2011 or 2013 plans from further challenge, regardless of their legal infirmities.” Id., at 649–650. Finally, summarizing its analysis, the court reiterated that the 2011 Legislature’s “discriminatory taint was not removed by the [2013] 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 be safe from remedy.” Id., at 686.
The Texas court’s decisions about CD35 and all but three of the Texas House districts were based entirely on its finding that the 2013 Legislature had not purged its predecessor’s discriminatory intent. However, the court also held that three districts—CD27, HD32, and HD34—were invalid under §2 of the Voting Rights Act because they had the effect of depriving Latinos of the equal opportunity to elect their candidates of choice. Id., at 682–686; 267 F. Supp. 3d, at 775–783. And the court found independent proof that HD90 was a racial gerrymander. Id., at 788–794.
The court held that violations in all these districts “must be remedied.” 274 F. Supp. 3d, at 686; see also 267 F. Supp. 3d, at 795 (describing State House district violations that “must be remedied”). Mindful that October 1
was the deadline for the Texas Secretary of State to provide voter registration templates to the State’s counties, App. 380a–381a, the court took steps to bring about prompt remedial action. In two orders issued on August 15 and 24, the Texas attorney general was instructed to advise the court, within three days, “whether the Legislature intends to take up redistricting in an effort to cure these violations.” 274 F. Supp. 3d, at 686; 267 F. Supp. 3d, at 795. If the Legislature chose not to do so, the court warned, it would “hold a hearing to consider remedial plans.” Ibid. After the Governor made clear that the State would not act, the
Texas applied for stays of both orders, but the District Court denied the applications. App. 134a–136a. Texas then asked this Court to stay the orders, and we granted that relief. After receiving jurisdictional statements, we postponed consideration of jurisdiction and set the cases for consolidated argument. 583 U. S. ___ (2018).
II
Before reaching the merits of these appeals, we must assure ourselves that we have jurisdiction to review the orders at issue. Appellants claim that the orders amount to injunctions and are therefore appealable to this Court under
districting plans now in effect to conduct this year’s elections.
A
The Judiciary Act of 1789, 1 Stat. 73, “established the general principle that only final decisions of the federal district courts would be reviewable on appeal.” Carson v. American Brands, Inc., 450 U. S. 79, 83 (1981). But because “rigid application of this principle was found to create undue hardship in some cases,” Congress created exceptions. Ibid. Two are relevant here. We have jurisdiction under
The orders in these cases fall within
This “practical effect” rule serves a valuable purpose. If
an interlocutory injunction is improperly granted or denied, much harm can occur before the final decision in the district court. Lawful and important conduct may be barred, and unlawful and harmful conduct may be allowed to continue. Recognizing this, Congress authorized interlocutory appellate review of such orders. But if the availability of interlocutory
In analogous contexts, we have not allowed district courts to “shield [their] orders from appellate review” by avoiding the label “injunction.” Sampson v. Murray, 415 U. S. 61, 87 (1974). For instance, in Sampson, we held that an order labeled a temporary restraining order (which is not appealable under
Appellees and the dissent contend that the “practical effect” approach should be confined to
The provisions are also textually interlocked.
In addition, appellees’ suggested distinction would put appellate courts in an awkward position. Suppose that a district court granted an injunction that was narrower than the one requested by the moving party. Would an appellate court (whether this Court or a court of appeals) have jurisdiction to rule on only part of that decision? Suppose the appellate court concluded that the district court was correct in refusing to give the movant all the injunctive relief it sought because the movant’s entire claim was doomed to fail. Would the appellate court be limited to holding only that the lower court properly denied the relief that was withheld? The rule advocated by the appellees would needlessly complicate appellate review.12
Finally, appellees point in passing to Rule 65(d) of the Federal Rules of Civil Procedure, which requires that an injunction “state its terms specifically” and “describe in
was the deadline for the Texas Secretary of State to provide voter registration templates to the State’s counties, App. 380a–381a, the court took steps to bring about prompt remedial action. In two orders issued on August 15 and 24, the Texas attorney general was instructed to advise the court, within three days, “whether the Legislature intends to take up redistricting in an effort to cure these violations.” 274 F. Supp. 3d, at 686; 267 F. Supp. 3d, at 795. If the Legislature chose not to do so, the court warned, it would “hold a hearing to consider remedial plans.” Ibid. After the Governor made clear that the State would not act, the court ordered the parties to proceed with a hearing on the congressional plan on September 5, as well as a hearing on the plan for the Texas House on September 6. 274 F. Supp. 3d, at 686; 267 F. Supp. 3d, at 795; App. 134a–136a; Defendants’ Opposed Motion To Stay Order on Plan C235 Pending Appeal or Final Judgment in Civ. No. 11–cv–00360, Doc. 1538, pp. 3–4; Defendants’ Opposed Motion To Stay Order on Plan H358 Pending Appeal or Final Judgment, Doc. No. 1550, pp. 4–5.
Texas applied for stays of both orders, but the District Court denied the applications. App. 134a–136a. Texas then asked this Court to stay the orders, and we granted that relief. After receiving jurisdictional statements, we postponed consideration of jurisdiction and set the cases for consolidated argument. 583 U. S. ___ (2018).
II
Before reaching the merits of these appeals, we must assure ourselves that we have jurisdiction to review the orders at issue. Appellants claim that the orders amount to injunctions and are therefore appealable to this Court under
districting plans now in effect to conduct this year’s elections.
A
The Judiciary Act of 1789, 1 Stat. 73, “established the general principle that only final decisions of the federal district courts would be reviewable on appeal.” Carson v. American Brands, Inc., 450 U. S. 79, 83 (1981). But because “rigid application of this principle was found to create undue hardship in some cases,” Congress created exceptions. Ibid. Two are relevant here. We have jurisdiction under
The orders in these cases fall within
This “practical effect” rule serves a valuable purpose. If
an interlocutory injunction is improperly granted or denied, much harm can occur before the final decision in the district court. Lawful and important conduct may be barred, and unlawful and harmful conduct may be allowed to continue. Recognizing this, Congress authorized interlocutory appellate review of such orders. But if the availability of interlocutory review depended on the district court’s use of the term “injunction” or some other particular language, Congress’s scheme could be frustrated. The harms that Congress wanted to avoid could occur so long as the district court was careful about its terminology. The “practical effect” inquiry prevents such manipulation.
In analogous contexts, we have not allowed district courts to “shield [their] orders from appellate review” by avoiding the label “injunction.” Sampson v. Murray, 415 U. S. 61, 87 (1974). For instance, in Sampson, we held that an order labeled a temporary restraining order (which is not appealable under
Appellees and the dissent contend that the “practical effect” approach should be confined to
The provisions are also textually interlocked.
Appellees argue that an order denying an injunction (the situation in Carson) and an order granting an injunction (the situation here) should be treated differently, Brief for Appellees in No. 17–586, p. 27, but they offer no convincing reason for doing so. No authority supports their argument. The language of
In addition, appellees’ suggested distinction would put appellate courts in an awkward position. Suppose that a district court granted an injunction that was narrower than the one requested by the moving party. Would an appellate court (whether this Court or a court of appeals) have jurisdiction to rule on only part of that decision? Suppose the appellate court concluded that the district court was correct in refusing to give the movant all the injunctive relief it sought because the movant’s entire claim was doomed to fail. Would the appellate court be limited to holding only that the lower court properly denied the relief that was withheld? The rule advocated by the appellees would needlessly complicate appellate review.12
Finally, appellees point in passing to Rule 65(d) of the Federal Rules of Civil Procedure, which requires that an injunction “state its terms specifically” and “describe in
reasonable detail . . . the act or acts restrained or required.”
A contrary holding would be perverse.
For these reasons, we hold that we have jurisdiction under
B
With these principles settled, we conclude that the orders in these cases qualify as interlocutory injunctions under
The orders are unequivocal that the current legislative plans “violate
We do not suggest that this language alone is sufficient to show that the orders had the practical effect of enjoining use of the current plans in this year’s elections, but the court did not stop with these pronouncements. As we have noted, the orders required the Texas attorney general to inform the court within three days whether the Legislature would remedy the violations, and the orders stated that if the Legislature did not intend to adopt new plans, the court would hold remedial hearings.
The short time given the Legislature to respond is strong evidence that the three-judge court did not intend to allow the elections to go ahead under the plans it had just condemned. The Legislature was not in session, so in order to take up the task of redistricting, the Governor would have been required to convene a special session—which is no small matter. And, when the Governor declined to call a special session, the court moved ahead with its scheduled hearings and invited the parties to continue preparing for them even after this Court administratively stayed the August 15 order.
The import of these actions is unmistakable: The court intended to have new plans ready for use in this year’s elections. Nothing in the record even hints that the court contemplated the possibility of allowing the elections to proceed under the 2013 plans.
What is more, Texas had reason to believe that it would risk deleterious consequences if it defied the court and attempted to conduct the elections under the plans that the court had found to be based on intentional racial discrimination. In the very orders at issue, the court inferred discriminatory intent from Texas’s choice to appeal the D. C. court’s preclearance decision rather than immediately taking steps to bring its plans into compliance with that decision. 274 F. Supp. 3d, at 649; see Part III, infra. Reading such an order, 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
Contending that the orders here do not qualify under
Appellees suggest that appellate jurisdiction is lacking in this case because we do not know at this point “what a remedy would entail, who it would affect, and when it would be implemented.” Brief for Appellees in No. 17–586, at 27. The dissent makes a similar argument with respect to two of the Texas House districts. Post, at 13.15 But the issue here is whether this year’s elections can be held under the plans enacted by the Legislature, not whether any particular remedies would have ultimately been ordered by the District Court.
Appellees and the dissent also fret that this Court will be inundated with redistricting appeals if we accept jurisdiction here, Brief for Appellees in No. 17–626, p. 34; post, at 14–16, and n. 8, but there is no reason to fear such a flood. Because
It should go without saying that our decision does not mean that a State can always appeal a district court order holding a redistricting plan unlawful. A finding on liability cannot be appealed unless an injunction is granted or denied, and in some cases a district court may see no need for interlocutory relief. If a plan is found to be unlawful long before the next scheduled election, a court may defer any injunctive relief until the case is completed. And if a plan is found to be unlawful very close to the election date, the only reasonable option may be to use the plan one last time.
We appreciate our obligation to heed the limits of our jurisdiction, and we reiterate that
III
We now turn to the merits of the appeal. The primary question is whether the Texas court erred when it 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.
A
Whenever a challenger claims that a state law was enacted with discriminatory intent, the burden of proof lies with the challenger, not the State. Reno v. Bossier Parish School Bd., 520 U. S. 471, 481 (1997). This rule takes on special significance in districting cases.
Redistricting “is primarily the duty and responsibility of the State,” and “[f]ederal-court review of districting legislation represents a serious intrusion on the most vital of local functions.” Miller v. Johnson, 515 U. S. 900, 915 (1995) (internal quotation marks omitted). “[I]n assessing the sufficiency of a challenge to a districting plan,” a court “must be sensitive to the complex interplay of forces that enter a legislature’s redistricting calculus.” Id., at 915–916. And the “good faith of [the] state legislature must be presumed.” Id., at 915.
The allocation of the burden of proof and the presumption of legislative good faith are not changed by a finding of past discrimination. “[P]ast discrimination cannot, in the manner of original sin, condemn governmental action that is not itself unlawful.” Mobile, 446 U. S., at 74 (plurality opinion). The “ultimate question remains whether a discriminatory intent has been proved in a given
Neither the District Court nor appellees have pointed to any authority that would justify shifting the burden. The appellees rely primarily on Hunter v. Underwood, 471 U. S. 222 (1985), but that case addressed a very different situation. Hunter involved an equal protection challenge to an article of the Alabama Constitution adopted in 1901 at a constitutional convention avowedly dedicated to the establishment of white supremacy. Id., at 228–230. The article disenfranchised anyone convicted of any crime on a long list that included many minor offenses. Id., at 226–227. The court below found that the article had been adopted with discriminatory intent, and this Court accepted that conclusion. Id., at 229. The article was never repealed, but over the years, the list of disqualifying offenses had been pruned, and the State argued that what remained was facially constitutional. Id., at 232–233. This Court rejected that argument because the amendments did not alter the intent with which the article, including the parts that remained, had been adopted. Id., at 233. But the Court specifically declined to address the question whether the then-existing version would have been valid if “[re]enacted today.” Ibid.
In these cases, we do not confront a situation like the one in Hunter. Nor is this a case in which a law originally enacted with discriminatory intent is later reenacted by a different legislature. The 2013 Texas Legislature did not reenact the plan previously passed by its 2011 predecessor. Nor did it use criteria that arguably carried forward the effects of any discriminatory intent on the part of the 2011 Legislature. Instead, it enacted, with only very small changes, plans that had been developed by the Texas court pursuant to instructions from this Court “not to incorporate . . . any legal defects.” Perry, 565 U. S., at 394.
Under these circumstances, there can be no doubt about what matters: It is the intent of the 2013 Legislature. And it was the plaintiffs’ burden to overcome the presumption of legislative good faith and show that the 2013 Legislature acted with invidious intent.
The Texas court contravened these basic principles. Instead of holding the plaintiffs to their burden of overcoming the presumption of good faith and proving discriminatory intent, it reversed the burden of proof. It 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.” 274 F. Supp. 3d, at 649.
The Texas court’s references to the need to “cure” the earlier Legislature’s “taint” cannot be dismissed as stray comments. On the contrary, they were central to the court’s analysis. The court referred repeatedly to the 2013 Legislature’s duty to expiate its predecessor’s bad intent, and when the court summarized its analysis, it drove the point home. It stated: “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
The dissent labors to explain away all these references to the 2013’s Legislature’s supposed duty to purge its predecessor’s allegedly discriminatory intent, but the dissent loses track of its own argument and characterizes the District Court’s reasoning exactly as we have. Indeed, the dissent criticizes us on page 33 of its opinion for saying precisely the same thing that it said 11 pages earlier. On page 33, the dissent states:
“[T]he 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.’” But the District Court did not put the burden on Texas to make that affirmative showing.” Post, at 33 (quoting supra, at 23, in turn quoting 274 F. Supp. 3d, at 649; citations omitted).
But earlier, the dissent itself describes the District Court’s analysis as follows:
“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.’” Post, at 22 (quoting 274 F. Supp. 3d, at 649).
And this is not just a single slip of the pen. The dissent writes that the District Court was required “to assess how the 2013 Legislature addressed the known discrimination that motivated” the districts approved by that Court in 2012. Post, at 31. The dissent quotes the District Court’s statement that “‘there is no indication that the Legislature looked to see whether any discriminatory taint remained in the plans.’” Post, at 23 (quoting 274 F. Supp. 3d, at 649). And there is also this: “Texas was just ‘not truly interested in fixing any remaining discrimination in [its 2011 maps].’” Post, at 22 (quoting 274 F. Supp. 3d, at 651, n. 45). The District Court’s true mode of analysis is so obvious that the dissent cannot help but repeat it. And that approach was fundamentally flawed and demands reversal.
While a district court’s finding of fact on the question of discriminatory intent is reviewed for clear error, see Cromartie, 532 U. S., at 242, whether the court applied the correct burden of proof is a question of law subject to plenary review, U. S. Bank N. A. v. Village at Lakeridge, LLC, 583 U. S. ___, ___ (2018) (slip op., at 5); Highmark Inc. v. Allcare Health Management System, Inc., 572 U. S. ___, ___ (2014) (slip op., at 4). And when a finding of fact is based on the application of an incorrect burden of proof, the finding cannot stand. Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 501 (1984) (“An appellate cour[t has] power to correct errors of law, including those that . . . infect . . . a finding of fact that is predicated on a misunderstanding of the governing rule of law”).
B
In holding that the District Court disregarded the presumption of legislative
The only direct evidence brought to our attention suggests that the 2013 Legislature’s intent was legitimate. It wanted to bring the litigation about the State’s districting plans to an end as expeditiously as possible. The attorney general advised the Legislature that the best way to do this was to adopt the interim, court-issued plans. The sponsor of the 2013 plans voiced the same objective, and the Legislature then adopted the court-approved plans.
On its face, this explanation of the Legislature’s intent is entirely reasonable and certainly legitimate. The Legislature had reason to know that any new plans it devised were likely to be attacked by one group of plaintiffs or another. (The plaintiffs’ conflicting positions with regard to some of the districts in the plans now before us bear this out.) Litigating districting cases is expensive and time consuming, and until the districts to be used in the next election are firmly established, a degree of uncertainty clouds the electoral process. Wishing to minimize these effects is understandable and proper.
The court below discounted this direct evidence, but its reasons for doing so are not sound. The court stated that the “strategy” of the 2013 Legislature was to “insulate [the plans] from further challenge, regardless of [the plans’] legal infirmities.” 274 F. Supp. 3d, at 650; see also id., at 651, n. 45. But there is no evidence that the Legislature’s aim was to gain acceptance of plans that it knew were unlawful.20 Indeed, there is no evidence that the Legislature thought that the plans were invalid—and as we will explain, the Legislature had sound reasons to believe just the opposite.21
Not only does the direct evidence suggest that the 2013 Legislature lacked discriminatory intent, but the circumstantial evidence points overwhelmingly to the same conclusion. Consider the situation when the Legislature adopted the court-approved interim plans. First, the Texas court had adopted those plans, and no one would claim that the court acted with invidious intent when it did so. Second, the Texas court approved those plans only after reviewing them and modifying them as required to comply with our instructions. Not one of the judges on that court expressed the view that the plans were unlawful. Third, we had directed the Texas court to make changes in response to any claims under the
Is there any evidence from which a contrary inference can reasonably be drawn? Appellees stress the preliminary nature of the Texas court’s approval of the interim plans, and as we have said, that fact is relevant. But in light of our instructions to the Texas court and the care with which the interim plans were developed, the court’s approval still gave the Legislature a sound basis for thinking that the interim plans satisfied all legal requirements.
The court below and the dissent infer bad faith because the Legislature “pushed the redistricting bills through quickly in a special session.” 274 F. Supp. 3d, at 649. But we do not see how the brevity of the legislative process can give rise to an inference
The District Court and the dissent also err when they charge that Representative Darby, the chair of the Texas House Redistricting Committee at the time in question, “‘willfully ignored those who pointed out deficiencies’” in the plans. Post, at 22 (quoting 274 F. Supp. 3d, at 651, n. 45). This accusation is not only misleading, it misses the point. The Legislature adopted the interim plans in large part because they had the preliminary approval of the District Court, and Darby was open about the fact that he wanted to minimize amendments to the plans for that reason. See, e.g., Joint Exh. 17.3, pp. S1–S2. That Darby generally hoped to minimize amendments—so that the plans would remain legally compliant—hardly shows that he, or the Legislature, acted with discriminatory intent. In any event, it is misleading to characterize this attitude as “willfu[l] ignor[ance].” The record shows that, although Darby hoped to minimize amendments, he did not categorically refuse to consider changes. This is illustrated by his support for an amendment to HD90, which was offered by the then-incumbent, Democrat Lon Burnam, precisely because it fixed an objection raised by the Mexican American Legal Caucus (MALC) that the district’s Latino population was too low. 267 F. Supp. 3d, at 790.24
The Texas court faulted the 2013 Legislature for failing to take into account the problems with the 2011 plans that the D. C. court identified in denying preclearance, ibid., but the basis for that criticism is hard to understand. One of the 2013 Legislature’s principal reasons for adopting the court-approved plans was to fix the problems identified by the D. C. court. The attorney general advised the Legislature to adopt the interim plans because he thought that was the “best way to remedy the violations found by the D. C. court.” C. J. S. 432a. Chairman Darby similarly stated that the 2013 plans fixed the errors found by the D. C. court, Tr. 1498, 1584–1585 (July 14, 2017), as did Senator Seliger, Joint Exh. 26.2, p. A–5.
There is nothing to suggest that the Legislature proceeded in bad faith—or even that it acted unreasonably—in pursuing this strategy. Recall that we instructed the Texas court, in developing the interim plans, to remedy any
Although the D. C. court found that the 2011 Legislature acted with discriminatory intent in framing the congressional plan, that finding was based on evidence about districts that the interim plan later changed. The D. C. court was concerned about the intent reflected in the drawing of CDs 9, 18, and 30, but all those districts were amended by the Texas court. Texas, supra, at 159–160; C. J. S. 406a–408a. With respect to the plan for the Texas House, the D. C. court made no intent findings, but its areas of concern were generally addressed by the Texas court and the 2013 plans. Compare Texas, supra, at 178 (noting evidence of unlawful intent in HD117), with H. J. S. 307a (amending HD117).25
It is indicative of the District Court’s mistaken approach that it inferred bad faith from Texas’s decision to take an appeal to this Court from the D. C. court’s decision denying preclearance. See 274 F. Supp. 3d, at 649 (“Defendants did not accept [these findings] and instead appealed to the Supreme Court”). Congress gave the State the right to appeal, and no bad motive can be inferred from its decision to make use of this right—unless of course the State had no reasonable grounds for appeal. Before our decision in Shelby County mooted Texas’s appeal to this Court from the D. C. court’s preclearance decision, Texas filed a jurisdictional statement claiming that the D. C. court made numerous errors, but the Texas court made no attempt to show that Texas’s arguments were frivolous.
As a final note, appellees assert that the 2013 Legislature should have either defended the 2011 plans in litigation or gone back to the drawing board and devised entirely new plans, Brief for Appellees in No. 17–626, at 45, but there is no reason why the Legislature’s options should be limited in this way. It was entirely permissible for the Legislature to favor a legitimate option that promised to simplify and reduce the burden of litigation. That the Legislature chose this course is not proof of discriminatory intent.
IV
Once the Texas court’s intent finding is reversed, there remain only four districts that were invalidated on alternative grounds. For three of these districts, the District Court relied on the “effects” test of
A
To make out a
1
The Texas court held that CD27 violates
The problem with this holding is that plaintiffs could not establish a violation of
Attempting to get around this problem, the Texas court relied on our decision in LULAC, but it misapplied our holding. In LULAC, we held that the State should have created six proper Latino opportunity districts but instead drew only five. 548 U. S., at 435. Although the State claimed that the plan actually included a sixth opportunity district, that district failed to satisfy the Gingles factors. 548 U. S., at 430. We held that a “State’s creation of an opportunity district for those without a
Here, the Texas court concluded that Texas committed the same violation as in LULAC: It created “an opportunity district for those without a
CD35 lies to the north of CD27 and runs along I–35 from San Antonio up to Austin, the center of Travis County. In the District Court’s view, the Latinos of CD35 do not have a
First, the Court took the wrong approach in evaluating the presence of majority bloc voting in CD35. The Court looked at only one, small part of the district,
Second, here, unlike in LULAC, the 2013 Legislature had “good reasons” to believe that the district at issue (here CD35) was a viable Latino opportunity district that satisfied the Gingles factors. CD35 was based on a concept proposed by MALDEF, C. J. S. Findings 315a–316a, and the Latino Redistricting Task Force (a plaintiff group) argued that the district is mandated by
2
The District Court similarly erred in holding that HD32 and HD34 violate
Findings made by the court below show that these two districts do not violate
supra, at 425–426, and it is hard to see how this standard could be met if the alternative to the districting decision at issue would not enhance the ability of minority voters to elect the candidates of their choice.
The only plaintiff that pressed a §2 claim with respect to HD32 and HD34 was MALC, 267 F. Supp. 3d, at 767, and as the District Court recognized, that group‘s own expert determined that it was not possible to divide Nueces County into more than one performing Latino district. In his analysis, the expert relied on Nueces County election returns for statewide elections between 2010 and 2016. Id., at 775–776. Based on this data, he calculated that when both HD32 and HD34 were maintained as Latino-majority districts, one performed for Latinos in only 7 out of 35 relevant elections, and the other did so in none of the 35 elections. Ibid. In order to create two performing districts in that area, it was necessary, he found, to break county lines in multiple places, id., at 778, but the District Court held that “breaking the County Line Rule” in the Texas Constitution, see
The court refused to accept this conclusion, but its reasons for doing so cannot stand up. As an initial matter, the court
The only other reason provided by the court was the observation that MALC “failed to show” that two majority-Latino districts in Nueces County would not perform. Id., at 782. This observation twisted the burden of proof beyond recognition. It suggested 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.27 Courts cannot find §2 effects violations on the basis of uncertainty. In any event, if even the District Court remains unsure how to draw these districts to comply with §2 (after six years of litigation, almost a dozen trials, and numerous opinions), the Legislature surely had the ” ‘broad discretion’ ” to comply as it reasonably saw fit in 2013, LULAC, supra, at 429.
The dissent charges us with ignoring the District Court‘s “‘intensely local appraisal“’ of Nueces County, post, at 43, but almost none of the “findings” that the District Court made with respect to HD32 and HD34 referred to present local conditions, and none cast any significant light on the question whether another opportunity district is possible at the present time. For instance, what the dissent describes as Texas‘s “long ‘history of voting-related discrimination,’ ” ibid., in no way undermines—or even has any logical bearing on—the conclusions reached by MALC‘s expert about whether Latino voters would have a real opportunity to elect the candidates of their choice if the county was divided into two districts with narrow majorities of Latino citizens of voting age. The same is true with respect to the District Court‘s findings regarding racially polarized
B
HD90 is a district in Tarrant County that, unlike the other districts at issue in this appeal, was not copied from the District Court‘s interim plans. Instead, the 2013 Legislature substantially modified the district developed by the District Court, and the District Court held that the 2013 Legislature‘s creation is an invalid racial gerrymander. 267 F. Supp. 3d, at 794.
In drawing HD90, the Legislature was pulled in opposite directions by competing groups. In 2011, the Legislature, responding to pressure from MALDEF, increased the Latino population of the district in an effort to make it a Latino opportunity district. H. J. S. Findings 258a–262a. In the process of doing so, the Legislature moved the community of Como, which is predominantly African-American, out of the district. But Como residents and the member of the Texas House who represented the district, Lon Burnam, objected, and in 2013, the Legislature moved Como back into the district. 267 F. Supp. 3d, at 788–789. That change was opposed by MALC because it decreased the Latino population below 50%. App. 398a–399a. So the Legislature moved Latinos into the district to bring the Latino population back above 50%. 267 F. Supp. 3d, at 789–790.
In light of these maneuvers, Texas does not dispute that race was the predominant factor in the design of HD90, but it argues that this was permissible because it had “‘good reasons to believe’ ” that this was necessary to satisfy §2 of the Voting Rights Act.” Bethune-Hill, 580 U. S., at ___ (slip op., at 14).
Texas offers two pieces of evidence to support its claim. The first—that one of the plaintiffs, MALC, demanded as much—is insufficient. A group that wants a State to create a district with a particular design may come to have an overly expansive understanding of what §2 demands. So one group‘s demands alone cannot be enough.
The other item of evidence consists of the results of the Democratic primaries in 2012 and 2014. In 2012, Representative Burnham, who was not the Latino candidate of choice, narrowly defeated a Latino challenger by 159 votes. And in 2014, the present representative, Ramon Romero, Jr., beat Burnam by 110 votes. See Brief for Appellants 70. These election returns may be suggestive, but standing alone, they were not enough to give the State good reason to conclude that it had to alter the district‘s lines solely on the basis of race. And putting these two evidentiary items together helps, but it is simply too thin a reed to support the drastic decision to draw lines in this way.
We have previously rejected proffers of evidence that were at least as strong as Texas‘s here. For example, in Cooper, 581 U. S., at ___ (slip op., at 11), we analyzed North Carolina‘s justification for deliberately moving “African-American voters” into a district to “ensure . . . the district‘s racial composition” in the face of its expansion in size. North Carolina argued that its race-based decisions were necessary to comply with §2, but the State could point to “no meaningful legislative
By contrast, where we have accepted a State‘s “good reasons” for using race in drawing district lines, the State made a strong showing of a pre-enactment analysis with justifiable conclusions. In Bethune-Hill, the State established that the primary mapdrawer “discussed the district with incumbents from other majority-minority districts[,] . . . considered turnout rates, the results of the recent contested primary and general elections,” and the district‘s large prison population. 580 U. S., at ___ (slip op., at 15). The State established that it had performed a “functional analysis,” and acted to achieve an “informed bipartisan consensus.” Id., at ___ (slip op., at 14). Texas‘s showing here is not equivalent.
Perhaps Texas could have made a stronger showing, but it is the State‘s burden to prove narrow tailoring, and it did not do so on the record before us. We hold that HD90 is an impermissible racial gerrymander. On remand, the District Court will have to consider what if any remedy is appropriate at this time.
* * *
Except with respect to one Texas House district, we hold that the court below erred in effectively enjoining the use of the districting maps adopted by the Legislature in 2013. We therefore reverse with respect to No. 17–586; reverse in part and affirm in part with respect to No. 17–626; and remand for proceedings consistent with this opinion.
It is so ordered.
GREG ABBOTT, GOVERNOR OF TEXAS, ET AL., APPELLANTS v. SHANNON PEREZ, ET AL.
Nos. 17–586 and 17–626
SUPREME COURT OF THE UNITED STATES
[June 25, 2018]
Cite as: 585 U. S. ____ (2018)
THOMAS, J., concurring
JUSTICE THOMAS, with whom JUSTICE GORSUCH joins, concurring.
I adhere to my view that §2 of the Voting Rights Act of 1965 does not apply to redistricting. See Cooper v. Harris, 581 U. S. ___, ___ (2017) (concurring opinion) (slip op., at 1) (citing Holder v. Hall, 512 U. S. 874, 922–923 (1994) (THOMAS, J., concurring in judgment)). Thus, §2 cannot provide a basis for invalidating any district, and it cannot provide a justification for the racial gerrymander in House District 90. Because the Court correctly applies our precedents and reaches the same conclusion, I join its opinion in full.
GREG ABBOTT, GOVERNOR OF TEXAS, ET AL., APPELLANTS v. SHANNON PEREZ, ET AL.
Nos. 17–586 and 17–626
SUPREME COURT OF THE UNITED STATES
[June 25, 2018]
Cite as: 585 U. S. ____ (2018)
SOTOMAYOR, J., dissenting
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
This disregard of both precedent and fact comes at serious costs to our democracy. It means that, after years of litigation and undeniable proof of intentional discrimination, minority voters in Texas—despite constituting a majority of the population within the State—will continue to be underrepresented in the political process. Those voters must return to the polls in 2018 and 2020 with the knowledge that their ability to exercise meaningfully their right to vote has been burdened by the manipulation of district lines specifically designed to target their communities and minimize their political will. The fundamental right to vote is too precious to be disregarded in this manner. I dissent.
I
A
The first obstacle the majority faces in its quest to intervene in these cases is jurisdictional. The statute that governs our jurisdiction over these appeals is
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
Similarly, Whitcomb v. Chavis, 403 U. S. 124 (1971), concerned a redistricting challenge in which a three-judge District Court held that “a redistricting of [the challenged county was] necessitated” and “that the evidence adduced . . . and the additional apportionment requirements set forth by the Supreme Court call[ed] for a redistricting of the entire state as to both houses of the General Assembly,” Chavis v. Whitcomb, 305 F. Supp. 1364, 1391 (SD Ind. 1969). Recognizing “that the federal judiciary functions within a system of federalism which entrusts the responsibility of legislative apportionment and districting primarily to the state legislature,” the District Court afforded the Governor “a reasonable opportunity to call a Special Session of the General Assembly of the State of Indiana so that it may enact legislation to redistrict the State and reapportion the legislative seats in the General Assembly in accordance with federal constitutional re-quirements and in compliance with [its] opinion.” Id., at 1392. The District Court gave the State a little over two months to enact new statutes “to remedy the improper districting and malapportionment.” Ibid. When the Governor appealed from that order, this Court dismissed for want of jurisdiction because “at [the] time no judgment had been entered and no injunction had been granted or denied.” 403 U. S., at 138, n. 19. The findings of liability on the merits and the unequivocal indication that the redistricting and malapportionment violations had to be remedied were not enough.
B
Straightforward application of this precedent compels the conclusion that this Court lacks jurisdiction over these appeals. Here, Texas appeals from two orders entered by the three-judge District Court on August 15 and 24, 2017. Those orders concern the constitutional and statutory challenges to Texas’ State House and federal congressional redistricting plans, enacted by the Texas Legislature (hereinafter Legislature) in 2013 (hereinafter the 2013 maps). As relevant here, the orders concerned Texas House districts in Bell County (HD54 and HD55), Dallas County (HD103, HD104, and HD105), Nueces
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
That is the end of the inquiry under our precedent, as our past cases are directly on point. Like in Gunn and Whitcomb, the District Court issued a ruling on the merits against the State. Like in Gunn and Whitcomb, the District Court was clear that those violations required a remedy. Like in Gunn and Whitcomb, the District Court stayed its hand and did not enter an injunction, instead allowing the State an opportunity to remedy the violations. Therefore, like in Gunn and Whitcomb, this Court lacks jurisdiction under
C
1
Despite this precedent, the majority nonetheless concludes that our intervention at this early stage is not only authorized, but mandatory. None of the justifications that the majority offers for deviating from our precedent is persuasive.
The majority justifies its jurisdictional overreach by holding that
This distinction matters a great deal. Courts of appeals generally have jurisdiction
Brushing that distinction aside, the majority contends that “we also construe
2
Looking to escape that pitfall in its reasoning, the majority turns to the text of the two jurisdictional statutes. But the text provides no refuge for its position. The majority first states that “the relevant language in the two provisions is nearly identical.” Ante, at 13. But whereas
Next, the majority contends that
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
prematurely appeals to the court of appeals an order that would otherwise fall within
3
The majority attempts to bolster its jurisdictional conclusion with a passing reference to the “valuable purpose” served by the “practical effect” rule, i.e., preventing district courts from manipulating proceedings by avoiding labeling their orders as “injunctions.” Ante, at 12–13. Notably, the majority cites no evidence for the proposition that district courts are engaging in any kind of manipulation. Nor is there any indication that the District Court here attempted to manipulate the proceedings by shielding its orders from appellate review. Instead, the District Court carefully adhered to a common practice in cases implicating important state interests, staying its hand as to the remedy to allow the State an opportunity to act, as happened in Gunn and Whitcomb.
More important, the majority ignores the “valuable purposes” served by the longstanding rule requiring strict construction of
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-HCVAP7 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
of injunctive orders under the Federal Rules] makes clear that the court did not think its [orders] constituted an order granting an injunction.” Gunn, 399 U.S., at 389. If any doubt remained as to the effect of the orders here, moreover, the District Court explicitly assured the parties that, even though it had found violations, it was not enjoining use of the 2013 maps for the upcoming elections. App. 134a–136a.
Finally, it is axiomatic that “administrative simplicity is a major virtue in a jurisdictional statute.” Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010).
“Complex jurisdictional tests complicate a case . . . . Complex tests produce appeals and reversals, [and] encourage gamesmanship . . . . Judicial resources too are at stake [as] courts benefit from straightforward rules under which they can readily assure themselves of their power to hear a case. Simple jurisdictional rules also promote greater predictability.” Ibid. (citations omitted).
Simple is thus the name of the game when it comes to jurisdictional rules. The rule in the majority opinion is anything but. Although the majority claims that a mere “finding on liability cannot be appealed unless an injunction is granted or denied,”
The majority opinion purports to add a limit by distinguishing between unappealable orders that find a plan “unlawful long before the next scheduled election” or “very close to the election date,” and those (presumably) appealable orders that are entered neither “long before” nor “very close” to the next election. Ante, at 20.9 What does that even mean? The orders at issue here were entered about 15 months before the 2018 elections, and according to the majority fall within the not “long before” but not “very close” appealable range. Why this is so, however, the majority never says. Without any definitions for its boundary posts, courts will be left to wonder: What about orders entered 17 or 18 months before an election? Are those considered “long before” so they would be unappealable? And are orders entered 14, 13, or 12 months before the election similarly unappealable because they were entered “very close” to the election date? And what does the majority mean by “the election date”? Does that include primaries? What about registration deadlines, or ballot-printing deadlines? It is not uncommon for there to be, at any given time, multiple impending deadlines relating to an upcoming election. Thinking through the many variations of jurisdictional disputes that will arise over the years following this novel reading of
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 predictability, the rule will incentivize appeals and “encourage gamesmanship.” Hertz Corp., 559 U.S., at 94. The Court will no doubt regret the day it opened its courthouse doors to such time-consuming and needless manipulation of its docket.
D
Even if the majority were correct to import the “practical effect” rule into the
Second, the August 15 and 24 orders at issue here simply 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 majority 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
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
II
Having rewritten the limits of
A
Before delving into the content of the August 15 and 24 orders, a quick recap of the rather convoluted history of these cases is useful. In 2011, the Texas Legislature redrew its electoral districts. Various plaintiff groups challenged the 2011 maps under
“Faced with impending election deadlines and unprecleared plans that could not be used in the [2012] election, [the District] Court was faced with the ‘unwelcome obligation’ of implementing interim plans so that the primaries could proceed.” 274 F. Supp. 3d, at 632. In January 2012, this Court vacated the first iteration of those interim maps in Perry v. Perez, 565 U.S. 388, 394–395 (2012) (per curiam), finding that the District Court failed to afford sufficient deference to the Legislature. In February 2012, the District Court issued more deferential interim plans, but noted that its analysis had been expedited and curtailed, and that it had only made preliminary conclusions that might be revised on full consideration. C. J. S. 367a–424a; H. J. S. 300a–315a.
In August 2012, the D. C. District Court denied preclearance of the 2011 maps. Texas v. United States, 887 F. Supp. 2d 133 (2012). It concluded that the federal congressional map had “retrogressive effect” and “was enacted with discriminatory intent,” id., at 159, 161, and that the State House map was retrogressive and that “the full record strongly suggests that the retrogressive effect . . . may not have been accidental,” id., at 178. Texas appealed, and the case was eventually dismissed following Shelby County v. Holder, 570 U.S. 529 (2013) (holding unconstitutional the formula used to subject States to the preclearance requirement).
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
B
The majority believes that, in analyzing the 2013 maps, the District Court erroneously “attributed [the] same [discriminatory] intent [harbored by the 2011 Legislature] to the 2013 Legislature” and required the 2013 Legislature to purge that taint. Ante, at 9–10. The District Court did no such thing. It engaged in a painstaking analysis of discriminatory intent under Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), which is critical to understanding why, as explained in Part II–D, infra, the District Court did not improperly presume that the Legislature acted with discriminatory intent.
Under Arlington Heights, “in determining whether racially discriminatory intent existed,” this Court considers “circumstantial and direct evidence” of: (1) the discriminatory “impact of the official action,” (2) the “historical background,” (3) the “specific sequence of events leading up to the challenged decision,” (4) departures from procedures or substance, and (5) the “legislative or administrative history,” including any “contemporary statements” of the lawmakers. 429 U.S., at 266–268. Although this analysis must start from a strong “presumption of good faith,” Miller v. Johnson, 515 U.S. 900, 916 (1995), a court must not overlook the relevant facts. This Court reviews the “findings of fact” made by the District Court, including those respecting legislative motivations, “only for clear error.” Cooper v. Harris, 581 U.S. ___, ___–___ (2017) (slip op., at 3–4); see also Anderson v. Bessemer City, 470 U.S. 564, 573 (1985). The Court therefore “may not reverse just because we ‘would have decided the [matter] differently. . . . A finding that is ‘plausible’ in light of the full record—even if another is equally or more so—must govern.” Harris, 581 U.S., at ___ (slip op., at 4).
The District Court followed the guidance in Arlington Heights virtually to a tee, and its factual findings are more than “plausible” in light of the record. To start, there is no question as to the discriminatory impact of the 2013 plans, as the “specific portions of the 2011 plans that [the District Court] found to be discriminatory or unconstitutional racial gerrymanders continue unchanged in the 2013 plans, their harmful effects ‘continu[ing] to this day.’” 274 F. Supp. 3d, at 649 (alteration in original). Texas, moreover, 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
Turning to deliberative process—on which the majority is singularly focused, to the exclusion of the rest of the factors analyzed in the orders below, see Part II–D, infra—the District Court concluded that Texas was just “not truly interested in fixing any remaining discrimination in the [maps].” 274 F. Supp. 3d, at 651, n. 45. Despite knowing of the discrimination in its 2011 maps, “the Legislature did not engage in a deliberative process to ensure that the 2013 plans cured any taint from the 2011 plans.”11 Id., at 649. For instance, Representative Darby, a member of the redistricting committee, “kept stating that he wanted to be informed of legal deficiencies so he could fix them,” but “he did not himself seek to have the plan evaluated for deficiencies and he willfully ignored those who pointed out deficiencies, continuing to empha-size 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
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 minority community,” H. J. S. 444a. In addition, “necessary resources were not allocated to support a true deliberative process.” 274 F. Supp. 3d, at 649. For instance, the House committee “did not have counsel when the session started.” Ibid., n. 39.
Nor can Texas credibly claim to have understood the 2012 interim orders as having endorsed the legality of its maps so that adopting them would resolve the challengers’ complaints. In its 2012 interim orders, “the [District] Court clearly warned that its preliminary conclusions . . . were not based on a full examination of the record or the governing law and were subject to revision” “given the severe time constraints . . . at the time” the orders were adopted. Id., at 650. The District Court also explained that the “claims presented . . . involve difficult and unsettled legal issues as well as numerous factual disputes.” C. J. S. 367a. During the redistricting hearings, chief legislative counsel for the Texas Legislative Council in 2013, Jeff Archer, advised the Legislature that the District Court “‘had not made full determinations, . . . had not made fact findings on every issue, had not thoroughly analyzed all the evidence’” and had “‘made it explicitly clear that this was an interim plan to address basically first impression of voting rights issues.’” 274 F. Supp. 3d, at 650 (alterations in original); see also App. 441a–442a (testimony that interim plans were “impromptu” and “preliminary” and that the District Court “disclaimed making final determinations”). Archer explained that although the Legislature had “‘put to bed’” challenges regarding “‘those issues that the [District] Court identified so far,’” it had not “‘put the rest to bed.’” 274 F. Supp. 3d, at 651, n. 45; see also App. 446a–447a (advising that, “on a realistic level,” the Legislature had not “removed legal challenges” and that adopting the interim maps “in no way would inoculate the plans”).
There was substantial evidence that the 2013 Legislature instead adopted the interim plans as part of a “strategy [that] involved adopting the interim maps, however flawed,” to insulate (and thus continue to benefit from) the discriminatory taint of its 2011 maps. 274 F. Supp. 3d, at 651. Texas hoped that, by adopting the 2012 interim maps, the challengers “would have no remedy, and [the Legislature] would maintain the benefit of such discrimination or unconstitutional effects.” Ibid. That strategy originated with the Texas attorney general, who was responsible for defending the State in the redistricting challenges. Id., at 650, and n. 41. He advised the Legislature that adopting the interim plans was the “‘best way to
In the end, having presided over years of litigation and seeing firsthand all of the evidence, the District Court thought it clear that Texas’ “strategy involved adopting the interim maps, however flawed” so that the challengers “would have no remedy, and [Texas] would maintain the benefit of such discrimination and unconstitutional effects.” Id., at 651. It is hard to imagine what a more thorough consideration of the Arlington Heights factors in these cases would have looked like. Review of the District Court’s thorough inquiry leads to the inescapable conclusion that it did not err—let alone clearly err—in concluding that the “Legislature in 2013 intentionally furthered and continued the existing discrimination in the plans.” 274 F. Supp. 3d, at 652.
C
In contrast to that thorough Arlington Heights inquiry, the majority engages in a cursory analysis of the record to justify its conclusion that the evidence “overwhelmingly” shows that Texas acted with legitimate intent. Ante, at 28. Two critical things are conspicuously missing from its analysis: first, consideration of the actual factual record (or most of it, anyway),13 and second, meaningful consid-eration 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
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.
Even had the majority not ignored the factual record, it still would be wrong in concluding that the District Court erred in finding that the 2013 Legislature acted with the intent to further and benefit from the discrimination in the 2011 maps. In light of the record before this Court, the finding of invidious intent is at least more than “‘plausible’” and thus “must govern.” Harris, 581 U.S., at ___ (slip op., at 4). The majority might think that it has a “better view of the facts” than the District Court did, but “the very premise of clear error review is that there are often ‘two permissible’—because two ‘plausible’—‘views of the evidence.’” Id., at ___–___ (slip op., at 9–10).
D
The majority resists the weight of all this evidence of invidious intent not only by disregarding most of it and ignoring the clear-error posture, but also by endorsing Texas’ distorted characterizations of the intent analysis in the orders below. Specifically, the majority accepts Texas’ argument that the District Court “reversed the burden of proof” and “imposed on the State the obligation of proving that the 2013 Legislature had experienced a true ‘change of heart’ and had ‘engage[d] in a deliberative process to ensure that the 2013 plans cured any taint from the 2011 plans.’” Ante, at 23 (alteration in original). The District Court did no such thing, and only a selective reading of the orders below could support Texas’ position.
It is worth noting, as a preliminary matter, that the majority does not question the relevance of historical discrimination in assessing present discriminatory intent. Indeed, the majority leaves undisturbed the longstanding principle recognized in Arlington Heights that the “‘historical background’ of a legislative enactment is ‘one evidentiary source’ relevant to the question
If consideration of this “‘historical background’” factor means anything in the context of assessing intent of the 2013 Legislature, it at a minimum required the District Court to assess how the 2013 Legislature addressed the known discrimination that motivated the drawing of the district lines that the Legislature was adopting, unchanged, from the 2011 maps. Therefore, the findings as to whether the 2013 Legislature engaged in a good-faith effort to address any known discrimination that tainted its 2011 plans were entirely apposite, so long as the District Court “weighed [this factor] together with any other direct and circumstantial evidence” bearing on the intent question, and so long as the burden remained on the challengers to establish invidious intent. Ante, at 26.
The majority faults the District Court for not adequately engaging in that weighing and giving too “central” a focus to the historical factor in its intent analysis. Ante, at 23; see also ante, at 23–24, n. 18. That alleged “central” focus, the majority contends, led the District Court to shift the burden of proof on the intent inquiry away from the challengers, instead requiring Texas to show that the Legislature cured its past transgressions. Ante, at 23. Those conclusions can only be supported if, as Texas and the majority have done, one engages in a highly selective reading of the District Court orders.
To begin, entirely absent from the majority opinion is any reference to the portions of the District Court orders that unequivocally confirm its understanding that the burden remained on the challengers to show that the 2013 Legislature acted with invidious intent. The District Court was explicit that the challengers bore the burden to “establish their claim by showing that the Legislature adopted the plans with a discriminatory purpose, maintained the district lines with a discriminatory purpose, or intentionally furthered preexisting intentional discrimination.” 274 F. Supp. 3d, at 646; see also id., at 645 (discussing Circuit precedent regarding the showing needed for “a plaintiff [to] meet the purpose standard”).16
Even when it does look at the actual language of the orders, the majority picks the few phrases that it believes support its
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
SOTOMAYOR, J., dissenting
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
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 singularly focused on whether the Legislature “removed” past taint. And then the majority would have to contend with the thorough analysis of the Arlington Heights factors, Part II–B, supra, that led the District Court to conclude that the 2013 Legislature acted with invidious intent.
III
The majority fares no better in its district-by-district analysis. In line with the theme underlying the rest of its analysis, the majority opinion overlooks the factual record and mischaracterizes the bulk of the analysis in the orders below in concluding that the District Court erred in finding a
A
1
To put in context the objections to the District Court’s conclusion regarding CD27, a brief review of the District Court’s factual findings as to that district is necessary. Before 2011, CD27 was a Latino opportunity district, i.e., a majority-HCVAP district with an opportunity to elect a Hispanic-preferred candidate. When the Legislature reconfigured the district in 2013, it moved Nueces County, a majority-HCVAP county, into a new Anglo-majority district to protect an incumbent “who was not the candidate of choice of those Latino voters” and likely would have been “ousted” by them absent the redistricting. C. J. S. 181a, 191a. The District Court found that the “placement of Nueces County Hispanics in an Anglo-majority district ensures that the Anglo majority usually will defeat the minority-preferred candidate, given the racially polarized voting in the area.” Id., at 189a–190a. It also found that “the political processes are not equally open to Hispanics” in Texas as a result of its “history of official discrimination touching on the right of Hispanics to register, vote, and otherwise to participate in the demo-cratic process [that] is well documented,” and that “Latinos bear the effects of past discrimination in areas such as education and employment/income, which hinder their ability to participate effectively in the political process.” Id., at 190a–191a. Given those findings, the District Court concluded that the newly constituted CD27 “has the effect of diluting Nueces County Hispanic voters’ electoral opportunity.” Id., at 191a.
Texas nevertheless contended (and maintains here) that no
Importantly, the District Court concluded that, without CD35, Texas could have drawn one more Latino oppor-tunity 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
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
But the majority confuses the relevant inquiry, as well as the relevant timeline. The particular
Second, the majority reasons that “the 2013 Legislature had ‘good reasons’ to believe that [CD35] was a viable Latino opportunity district that satisfied the Gingles factors.” Ante, at 35. For this, the majority cites to the fact that the district “was based on a concept proposed by MALDEF” and that one group of plaintiffs “argued that the district [was] mandated by
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
Had the majority properly framed the inquiry and applied the clear-error standard to the full factual record, it could not convincingly dispute the existence of a
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
1
I turn now to HD32 and HD34. Before the 2011 redistricting, Nueces County had within it two Latino opportunity districts and part of one Anglo-represented district. 267 F. Supp. 3d, at 767. Due to slower population growth reflected in the 2010 census, however, Nueces County was entitled to have within it only two districts. Accordingly, during the 2011 redistricting, the Legislature opted to “eliminate one of the Latino opportunity districts . . . and draw two districts wholly within Nueces County—one strongly Latino (HD34) and one a safe Anglo Republican seat (HD32) to protect [an] incumbent.” Ibid. “Based on an analysis of the Gingles requirements and the totality of the circumstances,” however, the District Court found that the Legislature could have drawn two compact minority districts in Nueces County. Id., at 780. Namely, the evidence demonstrated that it was possible to draw a map with “two districts with greater than 50% HCVAP,” that “Latinos in Nueces County are highly cohesive, and that Anglos vote as a block usually to defeat minority preferred candidates.” Id., at 777–778.
The District Court then considered two proposed configurations for those districts: one with two HCVAP-majority districts located wholly within Nueces County, and another that required breaking the County Line Rule. Id., at 777. The challengers preferred the latter configuration because, according to their expert, “an exogenous election index” revealed that the two HCVAP-majority districts wholly within Nueces County did “not perform sufficiently.” 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
The majority purports to accept these factual findings, and contends that they “show that [HD32 and HD34] do not violate
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
The majority, of course, is right on one thing: The District Court recognized that the challengers’ expert opined that the two HCVAP-majority districts would not perform based on the results of an exogenous election index. See ante, at 36. But the majority ignores that the District Court rejected that expert’s conclusion because “the results of an exogenous election index alone will not determine opportunity,” as “[s]uch indices often do not mirror endogenous election performance.” 267 F. Supp. 3d, at 778. Instead of “just relying on an exogenous election index to measure opportunity,” the District Court “conduct[ed] an intensely local appraisal to determine whether real electoral opportunity exists.” Ibid.
That “intensely local appraisal” resulted in a lengthy analysis that considered, among other facts: that Texas had a long “history of voting-related discrimination”; that “racially polarized voting exist[s] in Nueces County and its house district elections, the level is high, and the high degree of Anglo bloc voting plays a role in the defeat of Hispanic candidates”; “that Hispanics, including in Nueces County, suffer a ‘continuing pattern of disadvantage’ relative to non-Hispanics”; that population growth in the county “was [driven by] Hispanic growth” and that the “HCVAP continues to climb”; that the districts “include demographic distributions strongly favoring Hispanic voters,” and that the “numbers translate into a significant advantage in house district elections”; and that data analysis showed that “performance for Latinos increased significantly in presidential election years,” which “indicates that the districts provide potential to elect.” Id., at 778–782.20
Based on this review of the evidence, the District Court concluded “that Hispanics have equal opportunity in two districts drawn wholly within Nueces County (or at least [the challengers] failed to show that they do not).” Id., at 782. It further explained that, whereas the “evidence shows that two HCVAP-districts could have been drawn that would provide Hispanics with equal electoral opportunity, . . . the evidence does not show that the Legislature was required to break the County Line Rule to draw what [the challengers] consider to be ‘effective’ districts.” Id., at 783.
When read in the context of the full analysis just detailed, it is clear that the District Court was not “twist[ing] the burden of proof,” ante, at 37, when it observed that the challengers “failed to show that” the two HCVAP-majority districts drawn wholly within Nueces County would not perform. That statement plainly refers to the challengers’ failure to rebut the finding that the two districts wholly within Nueces County provided equal electoral opportunity to Hispanics, as they needed to do to show that
This Court has been clear that “the ultimate right of
IV
The Equal Protection Clause of the Fourteenth Amendment and
The Court today does great damage to that right of equal opportunity. Not because it denies the existence of that right, but because it refuses its enforcement. The Court intervenes when no intervention is authorized and blinds itself to the overwhelming factual record below. It does all of this to allow Texas to use electoral maps that, in design and effect, burden the rights of minority voters to exercise that most precious right that is “preservative of all rights.” Yick Wo v. Hopkins, 118 U. S. 356, 370 (1886); see Husted v. A. Philip Randolph Institute, 584 U. S. ___, ___ (2018) (SOTOMAYOR, J., dissenting) (slip op., at 5) (“Our democracy rests on the ability of all individuals, regardless of race, income, or status, to exercise their right to vote”). Because our duty is to safeguard that fundamental right, I dissent.