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Davis v. Abbott

United States Court of Appeals, Fifth Circuit

March 17, 2015

WENDY DAVIS; MARC VEASEY; PAT PANGBURN; FRANCES DELEON; DOROTHY DEBOSE; SARAH JOYNER; VICKY BARGAS; ROY BROOKS, Plaintiffs - Appellees
v.
GOVERNOR GREG ABBOTT, In His Official Capacity as Governor of the State of Texas; CARLOS CASCOS; THE STATE OF TEXAS, Defendants - Appellants; LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC); Domingo Garcia, Plaintiffs - Appellees
v.
GREG ABBOTT, In His Official Capacity; THE STATE OF TEXAS, Defendants - Appellants

Page 208

Appeals from the United States District Court for the Western District of Texas.

For WENDY DAVIS, MARC VEASEY, PAT PANGBURN, FRANCES DELEON, DOROTHY DEBOSE, SARAH JOYNER, VICKY BARGAS, ROY BROOKS, Plaintiffs - Appellees: J. Gerald Hebert, Esq., Alexandria, VA; Jessica Ring Amunson, Mark Peter Gaber, Paul March Smith, Jenner & Block, L.L.P., Washington, DC; David R. Richards, Richards Rodriguez & Skeith, L.L.P., Austin, TX; Luis Roberto Vera, Jr., Luis Roberto Vera, Jr. & Associates, San Antonio, TX.

For LEAGUE OF UNITED LATIN AMERICAN CITIZENS, (LULAC), DOMINGO GARCIA, Plaintiffs - Appellees: Luis Roberto Vera, Jr., Luis Roberto Vera, Jr. & Associates, San Antonio, TX.

For GOVERNOR GREG ABBOTT, In His Official Capacity as Governor of the State of Texas, CARLOS CASCOS, STATE OF TEXAS, Defendants - Appellants: Scott A. Keller, Solicitor, Matthew Hamilton Frederick, Deputy Solicitor General, Office of the Solicitor General, for the State of Texas, Austin, TX.

Before STEWART, Chief Judge, and JONES and HIGGINSON, Circuit Judges.

OPINION

Page 209

STEPHEN A. HIGGINSON, Circuit Judge:

This appeal involves the shifting legal landscape under the Voting Rights Act and its impact on Plaintiffs' entitlement to attorneys' fees. Leading up to the 2012 state Senate elections in Texas, Texas failed to gain preclearance of its recently enacted Senate redistricting plan as required under then-existing law. Because Texas's new plan had not been precleared, Plaintiffs filed a lawsuit and successfully blocked the plan for the 2012 elections. A three-judge district court panel in San Antonio enjoined Texas's plan and ordered an interim plan in its place. But after the election, the Supreme Court held that the Voting Rights Act's coverage formula, which automatically subjected Texas to the preclearance requirement, was unconstitutional. Regardless, after the Court's decision, Texas repealed the contested redistricting plan and adopted the court-imposed plan in its place, thus mooting Plaintiffs' lawsuit. The district court then awarded Plaintiffs attorneys' fees and costs. Texas appealed. Because we conclude that the district court erroneously characterized Plaintiffs as prevailing parties, we reverse.

FACTS AND PROCEEDINGS

In the summer of 2011, the Voting Rights Act required Texas (and a handful of other jurisdictions) to get " preclearance" from the Attorney General or the United States District Court for the District of Columbia before enforcing any new voting-related laws. See 42 U.S.C. § 1973c, declared unconstitutional in part by Shelby Cnty., Ala. v. Holder, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013). Because of this requirement, Texas filed a declaratory judgment action before a three-judge district court in Washington, D.C. in July 2011, seeking preclearance of a new state Senate redistricting plan that Texas had enacted earlier that summer (Plan S148 or " the 2011 plan" ). Plaintiffs intervened as defendants in the D.C. case and opposed preclearance of the 2011 plan.

While the preclearance proceedings were pending in D.C., a group of plaintiffs led by state Senator Wendy Davis filed suit before a different three-judge district court in San Antonio seeking to enjoin Texas's 2011 plan.[1] Plaintiffs first challenged the 2011 plan (S148) because it had not, and likely would not, receive Section 5 preclearance from the D.C. court (the " Section 5 claim" ). Plaintiffs also challenged the 2011 plan because it allegedly violated Section 2 of the Voting Rights Act, as well as the Fourteenth and Fifteenth Amendments (the " Section 2 and constitutional claims" ). They alleged that even if the D.C. court precleared the 2011 plan, the plan could not be administered because it diluted the voting strength of minority voters in two counties in North

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Texas. Further, Plaintiffs alleged that the 2011 plan dismantled the coalition of minority voters that had elected Davis in Senate District 10. Next, Plaintiffs also sought to enjoin Texas from using its old state Senate plan (S100) because it was malapportioned in violation of the Fourteenth Amendment (the " malapportionment claim" ). Finally, Plaintiffs sought to impose a new plan that remedied all of these violations, and they also requested fees and costs.

On September 29, 2011, the San Antonio district court enjoined implementation of the 2011 plan because it had not been precleared under Section 5. The court's order stated that the injunction would " be effective as a permanent injunction, subject to being lifted by order of the Court as appropriate." This injunction, however, did not pause the election cycle in Texas, and the 2012 election deadlines were fast approaching. Because the 2011 plan was still not precleared and because the old plan (S100) would have violated the Fourteenth Amendment's one-person, one-vote requirement, the district court created an interim plan that Texas could use in the 2012 Senate elections.

The district court's first attempt at fashioning an interim plan was Plan S164. This plan restored Senate District 10 to its pre-2011 configuration and altered five other Senate districts to accommodate that change. In the order issuing Plan S164 on November 23, 2011, the district court insisted that the " interim map is not a ruling on the merits of any claims asserted by the Plaintiffs in this case" and instead was simply imposed to " maintain[] the status quo as to the challenged district pending resolution of the preclearance litigation [in D.C.]"

Texas appealed to the Supreme Court. In its appeal, Texas challenged only the November 23 order implementing Plan S164; it did not appeal the district court's September 29 order blocking the 2011 plan. Texas argued that the district court was required to impose Texas's 2011 plan as an interim remedy instead of imposing a court-crafted plan (Plan S164) to govern the 2012 elections.

In Perry v. Perez, the Supreme Court rejected Texas's position. See 132 S.Ct. 934, 940, 181 L.Ed.2d 900 (2012) (per curiam). Although the Court did vacate the district court's order implementing Plan S164, it did not hold that a court-imposed interim plan would always be impermissible. See id. at 940, 944. Instead, the Court preliminarily recognized that the San Antonio district court had the " unwelcome obligation" of creating an interim plan for Texas's 2012 primaries and elections. Id. at 940 (citation omitted). The Court then remanded the case to the district court to develop an interim plan that was consistent with two newly announced standards. The Court first explained that district courts must use states' legislatively enacted plans " as a starting point" and depart from those plans only in limited circumstances. Id. at 941. Then, for the Section 2 and constitutional claims, the Court clarified that an interim plan should deviate from an enacted plan only if " those legal challenges are shown to have a likelihood of success on the merits." Id. at 942. For the Section 5 claim, however, the Court articulated a different standard, recognizing that only the district court in D.C. had jurisdiction over the merits of Section 5 claims. Id. For those claims, the district court's interim plan should alter only those aspects of the state's enacted plan " that stand a reasonable probability of failing to gain § 5 preclearance." Id. Under this standard, the district court was to determine whether the Plaintiffs' Section 5 challenges in

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the D.C. court were " not insubstantial." Id.

On remand, Plaintiffs proposed an interim plan that restored Senate District 10 to its pre-2011 configuration. Texas did not object, instead reserving its defenses for the final-judgment stage of the case. The district court approved Plaintiffs' proposed plan on February 28, 2012, and ordered that the plan (Plan S172 or the " interim plan" ) be used for the 2012 state Senate elections. The district court once again qualified that it was not ruling on the merits of any of Plaintiffs' challenges to the 2011 plan:

This interim plan is not a final ruling on the merits of any claims asserted by the Plaintiffs in this case or any of the other cases associated with this case. Nor is it intended to be a ruling on the merits of any claim asserted in the case pending in the United States District Court for the District of Columbia. Rather, this interim plan is a result of preliminary determinations regarding the merits of the Section 2 and constitutional claims presented in this case, and application of the " not insubstantial" standard for the Section 5 claims, as required by the Supreme Court's decision in Perry v. Perez.

In a March 19, 2012 order explaining the interim plan, the district court reiterated that it had applied the standard announced in Perry v. Perez. It further explained that, in adopting the interim plan, it " limited [its] changes in the State's enacted plan to those aspects of the plan 'that stand a reasonable probability of failing to gain § 5 preclearance.'" And once again, the district court emphasized that the " order applies only on an interim basis for the 2012 elections to the Texas Senate" and that " [n]othing in this order . . . represents a final judgment on the merits as to any claim or defense in this case, nor does it affect any future claim for attorney's fees." The district court's March 19, 2012 order did not mention Plaintiffs' Section 2 claim.[2]

On August 28, 2012, the district court in D.C. denied preclearance of Texas's 2011 plan. Texas v. United States, 887 F.Supp.2d 133 (D.D.C. 2012), vacated, 133 S.Ct. 2885, 186 L.Ed.2d 930 (2013). The D.C. court concluded that " the Senate Plan was enacted with discriminatory purpose as to SD 10" and that " Texas has not shown that the Senate Plan was enacted without discriminatory intent." Id. at 166. Texas again appealed to the Supreme Court. Meanwhile, Texas held its 2012 election using the court-imposed interim plan, and Senator Wendy Davis was reelected.

Next, a quick chain of events in June 2013 complicates the issues raised in this appeal. First, while Texas's appeal of the preclearance denial was still pending in the Supreme Court, the Texas Legislature repealed the 2011 plan and adopted the district court's interim plan (Plan S172) without change. This prompted Plaintiffs to ask the Supreme Court to dismiss as moot Texas's appeal of the D.C. court's preclearance denial on June 24, 2013. The next day, on June 25, 2013, the Supreme Court decided Shelby County, Alabama v. Holder, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013), finding unconstitutional Section 4(b) of the Voting Rights Act--the section containing the coverage formula

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that automatically required Texas to seek Section 5 preclearance. Although the Court reaffirmed the validity of Section 2 and " issue[d] no holding on [Section] 5 itself," the Court held that Section 4(b)'s coverage formula could " no longer be used" because it was based on outdated data. Id. at 2619, 2630--31. The day after Shelby County came down, on June 26, 2013, then-Governor Rick Perry signed the bill repealing the 2011 plan, adopting the new Senate plan (that is, the district court's interim plan), and making the plan immediately effective. Finally, on June 27, 2013, the Supreme Court vacated the D.C. district court's judgment denying preclearance of Texas's ...


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