Richards v Vera Appeal Jurisdictional Statement

    No.

In The

Supreme Court of the United States
October Term , 1994

ANN RICHARDS, Governor of Texas, et al.,
Appellants,

vs.

Al Vera, et al.,
Appellees.

On  A p p e a l  f r o m  t h e  Un it e d  S t  a t e s  D is t r ic t  
C o u r t  f o r  t h e  S o u t h e r n  D is t r ic t  o f  Te x a s

JURISDICTIONAL STATEMENT

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

Renea H ic k s* *
State Solicitor
*Counsel o f  Record

P.O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 
(512)463-2085

October, 1994 Attorneys for Appellants



1

QUESTIONS PRESENTED

1. Whether the configurations of three Texas minority opportunity 
districts created to comply with the Voting Rights Act are explainable on 
grounds other than race, thereby making strict scrutiny improper, when 
parallel, more compactly shaped minority opportunity districts 
demonstrably could have been drawn in the same vicinity but were not for 
non-racial state policy reasons?

2. Whether narrow tailoring to meet the compelling interest of 
compliance with the Voting Rights Act requires Texas to set aside other 
non-racial traditional districting principles, ignore politics, and draw only 
those minority opportunity districts conforming to the most idealized 
possible version of compact shape?

3. Whether Texas congressional districts 18, 29, and 30 — all 
localized, essentially single-county urban districts and all minority 
opportunity districts under the Voting Rights Act -  fall outside Shaw v. 
Reno’s threshold test of bizarreness?

4. Whether the statewide redistricting plan creating Texas 
congressional districts 18, 29, and 30 is consistent with the Equal 
Protection Clause as interpreted in Shaw v. Reno?

5. Whether a consistent state tradition of incumbency protection in 
congressional redistricting is within the category of traditional districting 
principles which make strict scrutiny inappropriate under Shaw v. Reno if 
observed in a redistricting plan?

6. Whether the injury-in-fact element of constitutional standing is 
satisfied in an equal protection redistricting case by plaintiffs who do not 
claim vote dilution, who are not the object of invidious discrimination by 
the challenged plan, and whose only identified harm is not living in a state 
whose congressional redistricting plan is designed wholly without race 
consciousness?

7. Protectively, based on a cautious interpretation o f  remedial 
order language, whether a district court exceeds its equitable powers by 
ordering a state legislature to enact remedial legislation by a specific date?



11

LIST OF PARTIES

Plaintiffs

A1 Vera 
Edward Chen 
Pauline Orcutt 
Edward Blum 
Kenneth Powers 
Barbara L. Thomas

Defendants

Ann Richards, Governor of Texas
Bob Bullock, Lieutenant Governor of Texas
Pete Laney, Speaker of the Texas House of Representatives
Dan Morales, Attorney General of Texas
Ron Kirk, Secretary of State of Texas

Defendant-Intervenors

United States

Rev. William Lawson 
Zollie Scales, Jr.
Rev. Jew Don Boney 
Deloyd T. Parker 
Dewan Perry 
Rev. Caesar Clark

League of United Latin American Citizens (LULAC) of Texas 
Robert Reyes 
Angie Garcia 
Robert Anguiano, Sr.
Dalia Robles 
Nicolas Dominguez 
Oscar T. Garcia 
Ramiro Gamboa



iii

TABLE OF CONTENTS

QUESTIONS PRESENTED............................................................... j

LIST OF PARTIES.......................................................  ii

TABLE OF CONTENTS...................................................................  iii

TABLE OF AUTHORITIES.............................................................. v

OPINION BELOW..............................................................................  1

JURISDICTION..................................................................................  i

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 2

STATEMENT OF THE CASE..........................................................  2

THE QUESTIONS PRESENTED ARE SUBSTANTIAL..............  12

I. Whether the lower court erred: (i) in holding that proof that more
compact, regularly shaped minority opportunity districts could 
have been drawn but were not because of non-racial politics is 
irrelevant to demonstrating that race is not the sole or overriding 
reason for the irregular shape of minority opportunity districts; 
and (ii) in holding that, on the contrary, such proof demonstrates 
an inability to meet the narrow tailoring requirement of strict 
scrutiny?.................................................................................  13

II. Whether, in a statewide redistricting, localized, single-county
urban minority opportunity districts with a lesser degree of single­
race dominance than every other district in the state can be 
deemed so facially irregular that Shaw's threshold test is 
satisfied?.................................................................................  15

III. Whether an unquestioned state tradition of incumbency protection 
(and the related tradition of furthering senatorial aspirations) may 
be judicially excluded from the realm of traditional districting
principles which, if followed, overcome a Shaw challenge? . 17

IV. Whether the lower court erred in applying Shaw to invalidate the 
three minority opportunity districts?.....................................  19



IV

V. Whether plaintiffs who do not claim harm from a diluted vote,
who have not been invidiously discriminated against, and who 
otherwise point to no concrete injury have standing to press an 
equal protection claim?..........................................................  20

VI. Whether the court exceeded its equitable powers and encroached 
on the state’s domain by exposing the legislature and its members 
to possible civil contempt and impermissibly confining the state’s 
remedial options to formal legislative enactments (protectively, 
based on a cautious interpretation of the lower court’s order)? 23

CONCLUSION...................................................................................  23

ATTACHMENTS A and B



V

TABLE OF AUTHORITIES

Cases Page(s)

Allen v. Wright, 468 U.S. 737 (1984) .......................  21
Baker v. Carr, 369 U.S. 186 (1962) .........................  22
Brown v. Board o f  Education, 347U S 483

(1954)   22
Burns v. Richardson, 384 U.S. 73 (1966) ................  23
Compare Palmore v. Sidoti, 466 U.S. 429 (1984) ....  22
DeWitt v. Wilson, 856 F.Supp. 1409

(E D. Cal. 1994)   15
Edelman v. Jordan, 415 U.S. 651 (1974) .................. 20
Growe v. Emison, 113 S.Ct. 1075 (1993) .................  14
Hays v. Louisiana, 1994 WL 477159

(W.D. La. July 29, 1994) ....................................  16
Johnson v. Miller, 1994 WL 506780

(S.D. Ga. Sept. 12, 1994) ...................................  15
Karcher v. Daggett, 462 U.S. 725 (1983) ................  18
Lujan v. Defenders o f  Wildlife, 112 S.Ct. 2130

(1992)     21
McDaniel v. Sanchez, 452 U.S. 130 (1981) .............  23
Northeastern Florida Chapter o f  the Associated 

General Contractors o f  America v. City o f
Jacksonville, 113 S.Ct. 2297 (1993)   21

Regents o f  the University o f  California v. Bakke,
438 U.S. 265 (1978)   21

Shaw v. Reno, 113 S.Ct. 2816 (1993) .......................passim
Spallone v. United States, 493 U.S. 625 (1990)   23
Strauderv. West Virginia, 100 U.S. 303 (1879)   21
Terrazas v. Slagle, 789 F.Supp. 828

(W.D. Tex. 1991)   3
Thornburg v. Gingles, 478 U.S. 30 (1986) ..............  14
Worth v. Seldin, 422 U.S. 490 (1975) .............  21
White v. Weiser, 412 U.S. 783 (1973) .............  18
Wise v. Lipscomb, 437 U.S. 535 (1978) .................... 23



VI

Statutes Pagels)

28U.S.C. § 1253 ...................................................... 2
42 U.S.C. § 1973 ...................................................... 2
42 U.S.C. § 1973c ...................................................... 2
Ch. 7, 72nd Tex. Leg., 2nd C.S. (Aug. 29, 1991) ......... 2

Miscellaneous

Karlan, All Over the Map: The Supreme Court's
Voting Rights Trilogy, 1993 Sup.Ct.Rev. 245 ....  20



No.

In  The

Supreme Court of the United States
October Term, 1994

ANN RICHARDS, Governor of Texas, et al.,
Appellants,

vs.

Al Vera, et ah,
Appellees.

On  A p p e a l  f r o m  t h e  Un it e d  S t a t e s  D is t r ic t  
C o u r t  f o r  t h e  S o u t h e r n  D is t r ic t  o f  Te x a s

JURISDICTIONAL STATEMENT

The Governor, Lieutenant Governor, Speaker of the House, 
Attorney General, and Secretary of the State of Texas (Ann Richards, 
Bob Bullock, Pete Laney, Dan Morales, and Ron Kirk, collectively termed 
“the state”) appeal from the injunction of the United States District Court 
for the Southern District of Texas, prohibiting use of the state’s 1991 
congressional redistricting plan for the 1996 elections.

OPINION BELOW

The unreported opinion of the three-judge district court is 
reproduced in the separately bound appendix to this jurisdictional 
statement (“J.S. A pp”) at 5a-84a.

JURISDICTION

The opinion declaring the unconstitutionality of three Texas 
congressional districts was entered on August 17, 1994. J.S. App. 5a- 
84a. The subsequent remedial order of the district court, permitting use of 
the current congressional redistricting plan to complete the 1994 elections 
but enjoining its use for the 1996 elections, was entered on September 2, 
1994, and amended nunc pro tunc on September 14, 1994. J.S. App. la-



2

4a. The state’s notice of appeal was filed on September 22, 1994. J.S. 
App. 85a. The Court has jurisdiction under 28 U.S.C. § 1253.

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

The Equal Protection Clause of the Fourteenth Amendment to the 
United States Constitution provides that “[N]o State shall . . . deny to any 
person within its jurisdiction the equal protection of the laws.” The 
relevant federal statutory provisions are sections 2 and 5 of the Voting 
Rights Act of 1965 as amended, 42 U.S.C. §§ 1973, 1973c, the pertinent 
parts of which are reproduced at J.S. App. 87a-88a. The state statute 
creating the congressional redistricting plan at issue is Ch. 7, 72nd Tex. 
Leg., 2nd C.S. (Aug. 29, 1991).

STATEMENT OF THE CASE

HB1 ’s enactment and the first litigation wave

The national reapportionment of Congress following the 1990 
census increased the number of Texas congressional seats from twenty- 
seven to thirty. In a second called session in the summer of 1991, the 
overwhelmingly white Texas legislature (the House is 78% white, the 
Senate, 77%) then enacted a congressional redistricting plan known as 
HB1, and the Governor signed it on August 29, 1991.

HB1 created two black and seven Hispanic opportunity districts 
under the Voting Rights Act. Black opportunity districts constitute 7% of 
the Texas congressional seats, while the black population in Texas equals 
12% of Texas’s nearly seventeen million people. Hispanic opportunity 
districts constitute 23% of the Texas congressional seats, and the 
Hispanic population in Texas is 23% of the total population.1 The 
national body ~  the 103rd Congress of the United States House of 
Representatives — of which the Texas congressional delegation is but a 
part is comprised of 8.7% black members and 3.9% Hispanic members 
St. Ex. 73 f2.

l Five members (17%) of the Texas congressional delegation are Hispanic.



3

Because HB1 established precise mathematical equality -  
566,217 people each — among the districts, it was insulated from any 
possible one person, one vote constitutional challenge under the Equal 
Protection Clause. It cleared the hurdle of section 5 of the Voting Rights 
Act when it was administratively precleared by the Department of Justice 
on November 18, 1991.

Republican plaintiffs, however, did challenge HB1 as violative of 
the racial antidiscrimination prohibitions of the Equal Protection Clause 
and section 2 of the Voting Rights Act and of the partisan gerrymandering 
prohibition of the Equal Protection Clause. All these challenges failed 
before a three-judge federal court, both at the preliminary injunction phase 
and upon entry of summary judgment for the state. See Terrazas v. 
Slagle, 789 F.Supp. 828, 833-35 (W.D. Tex. 1991), and 821 F Supp 
1162, 1172-75 (W.D. Tex. 1993).

Shaw-Aa.veii litigation

Successfully clearing three different equal protection hurdles and 
two statutory voting rights hurdles did not insulate the state’s 1991 
congressional plan from further constitutional challenge. In late January 
of 1994, following the Court’s decision in Shaw v. Reno, 113 S.Ct. 2816 
(1993), another set of Republican plaintiffs challenged HB1. When the 
case went to trial only five months later, no vote dilution claims remained; 
the challenge was premised solely on the Equal Protection Clause as 
framed under Shaw and was leveled at twenty-four of the thirty districts.

The three-judge district court sustained the Shaw challenge as to 
three districts (CDs 18, 29, and 30), rejected it as to the other twenty-one 
districts, and ordered the Texas legislature to come back with a remedial 
congressional plan by March 15, 1995 (while letting the 1994 
congressional elections be completed under HB1). This appeal is of the 
district court s declaration that CDs 18, 29, and 30 are unconstitutional 
and the associated injunction against using HB1 for Texas’s 1996 
congressional elections.



4

Targeted minority opportunity districts

Each invalidated district is a minority opportunity district 
originally conceived to comply with sections 2 and 5 of the Voting Rights 
Act, Two of the districts (CDs 18 and 29) lie wholly within Harris 
County in the Houston metropolitan area. The other district (CD 30) lies 
wholly within the Dallas metropolitan area (known as the Metroplex) and 
nearly 99% within the single county of Dallas.2 The longest axis for each 
of these districts is 39 miles for CD 18, 43 miles for CD 29, and 42 miles 
for CD 30. All parts of CDs 18 and 29 may be visited in any direction in 
less than one hour; CD 30 is similarly accessible. Each district is served 
by a single television, newspaper, and job market.

These three localized urban districts are highly integrated racially. 
In fact, they are the three Texas districts least dominated by any single 
racial voter group. Each of the 27 other Texas districts has a higher 
voting age percentage of some racial group than the three invalidated as 
the product of racial gerrymandering. In the face of this undisputed fact, 
the district court nonetheless characterized the three districts’ makeup as 
“exclusively racial.” J.S. App. 76a.

Two of them (CD 18 and 30) have no racial majority in voting 
age population, with CD 18 having a plurality of 48.6% black voting age 
population and CD 30, 47.1%. Dr. Chandler Davidson explained that CD 
30 has the smallest black population of any of the seventeen black 
opportunity districts in the eleven-state South. CD 29 has an Hispanic 
voting age population of 55.4% and lies in a county with a total Hispanic 
population of 644,935, nearly 80,000 larger than the population of a 
Texas congressional district and enough to form a majority in two 
districts. It is represented by an Anglo (white) incumbent who defeated an

2
Only 1.6% of CD 30’s total population lies outside Dallas County itself. About 

three quarters of these few are in Collin County, adjoining Dallas County to the north, 
and the remaining quarter are in Tarrant County (whose major city is Fort Worth), 
adjoining Dallas County to the west. Only 29% of the 1.6% of CD 30’s population 
lying in the two counties is black. To ease discussion, the state takes the liberty in the 
ensuing text of sometimes lumping CD 30 with CDs 18 and 30 in describing the three 
invalidated districts as “single-county” districts.



5

Hispanic opponent (who also was the preferred candidate of Hispanic 
voters) in the first Democratic primary held in the district.

A more concrete aesthetic sense of the three invalidated single­
county Texas districts comes from comparing them with the congressional 
district which was Shaw’s focus, North Carolina’s District 12.3 The first 
attachment (Att. A) at the back of this jurisdictional statement is a map 
drawn to scale and comparing Texas CDs 18, 29, and 30 with North 
Carolina District 12. The second attachment (Att. B) depicts a to-scale, 
identically-oriented comparison of the three invalidated minority 
opportunity districts with three other Texas congressional districts (CDs 
6, 19, and 21), all overwhelmingly Anglo in voting age population (at 
88.8%, 80.5%, and 84.2%, respectively), all encompassing both urban 
and rural areas, and all upheld by the district court.

While there had been a black opportunity district, originally held 
by Barbara Jordan, in Harris County for twenty years before the 1991 
redistricting, there had been neither a black opportunity district in Dallas 
County nor an Hispanic opportunity district in Harris County. Thus, CDs 
29 (in Harris County) and 30 (in Dallas County) were new districts 
coming with Texas’s gain of three congressional seats.

Politics, voting rights, and shaping the districts

The politics of adding the two new minority opportunity seats to 
the existing 1980’s congressional alignment had a profound effect on the 
ultimate shapes acquired by the new seats themselves and by CD 18. 
Independent of political forces and other pressures for maintenance of 
preexisting districts, more compact and idealized districts could have been 
drawn for a black opportunity district in Harris County, an Hispanic

Each of the three Texas districts is fully contiguous; none relies on the kind of 
double-point contiguity device used for North Carolina District 12. The origin of the 
district court’s description of these districts as lacking contiguity, J.S. App. 62a, 71a- 
72a n.54, is a mystery. It certainly is not in the record which carries not a whisper about 
a lack of contiguity.



6

opportunity district in Harris County, and a black opportunity district in 
Dallas County.4 The district court acknowledges this fact. J.S. App. 70a.

That such districts could have been drawn, and that the Voting 
Rights Act required minority opportunity districts in the two counties 
ultimately receiving them, was widely conceded. State Representative 
Grusendorf, one of the plaintiffs’ two principal witnesses at trial and a 
Republican member of the 1991 House Redistricting Committee, testified 
that the Voting Rights Act, as well as fairness, required the drawing of a 
new black opportunity district in Dallas County and a new Hispanic 
opportunity district in Harris County and that more compact ones than 
were drawn could have been drawn. Tr. 1:99-101.

The legislative and public record reveals no critical voice of 
dissent on the creation of three minority opportunity districts in the two 
counties in question at the time the legislature considered and enacted 
HB1. Section 5 and its non-retrogression standard appeared to compel 
maintenance of CD 18 as a black opportunity district, independent of 
what section 2 might require.

Section 2 also seemed to compel creation of an Hispanic 
opportunity district in Harris County and a black opportunity district in 
Dallas County.5 The previous decade’s Hispanic population growth in 
Harris County had been phenomenal, accounting for 67.5% of the overall 
population growth in that, the most populous of Texas’s 254 counties. 
The state’s long history of discrimination against Hispanics, seared into 
the legislative consciousness by Congress’s 1975 extension of section 5 
coverage to Texas and through numerous section 5 objections and section

4 The state drew such districts, and their pictures and demographics are in evidence 
as St. Exs. 12A, 12B, and 12C, respectively.

5 Looming over the legislature from nearly the beginning of its work on 
congressional redistricting and continuing through completion of the task was the 
Terrazas v. Slagle lawsuit, pre-filed in the Western District of Texas, under the 
legislature’s noses in the state capital. One of the three targets of that suit was Texas’s 
congressional redistricting plan, and one of the central claims was that section 2 of the 
Voting Rights Act required the creation of three minority opportunity districts in the 
vicinity and roughly similar to those ultimately created by the legislature.



7

2 litigation successes by Hispanic voters at all levels of Texas 
government, marked a path toward Voting Rights Act invalidation if an 
Hispanic congressional district were not created when it reasonably could 
be. Moreover, the legislators were intimately familiar with the racially 
polarized voting in Harris County which the state’s expert at trial, Dr. 
Lichtman, documented in a fashion unrefuted by the plaintiffs’ expert. 
Drawing a reasonably compact version of such an Hispanic opportunity 
district could be done within the meaning of the first factor in the Gingles 
framework, as the State’s Exhibit 12B later showed and as other maps 
such as one prepared by State Representative Roman Martinez 
contemporaneously demonstrated. Against this backdrop, the legislature 
began work on a Harris County Hispanic opportunity district that 
culminated in CD 29.

The question of whether section 2 required creation of a black 
opportunity district in Dallas County followed a similar pattern. Major 
voting rights efforts, first in the 1970’s and then during the 1980’s round 
of congressional districting, to create a black opportunity district in Dallas 
had fallen short. With the strengthening of section 2 through the 1982 
amendments to the Voting Rights Act and the availability of an additional 
congressional seat as a result of the post-1990 census reapportionment, 
the success of a section 2 suit should there be no black opportunity district 
created was foreordained. This, coupled with the existence of racially 
polarized voting in the Dallas area of the degree confirmed by Dr. 
Lichtman s analysis and the fact that a reasonably compact black 
opportunity district clearly could be created in the area, left no room for 
debate about the Voting Rights Act compulsion to create such a district.

Thus, the state drew three minority opportunity districts in the 
two counties to comply with an uncontested understanding that the Voting 
Rights Act compelled it. The state conceded from the beginning that it 
had been race-conscious in its decision to draw three minority opportunity 
districts, two in Harris County and one in Dallas County. It did not 
concede that the configuration and precise location of the districts 
ultimately denominated CDs 18, 29, and 30 were the products solely, 
primarily, or even substantially of race-consciousness. The idealized 
districts drawn for State’s Exhibit 12 were the product of race-



8

consciousness and compactness. The real districts were the product of 
much more.

While holding to the need to meet Voting Rights Act 
requirements, the state had to draw real districts by taking into account 
other powerful historical, political, and legal factors, including the one 
person, one vote constitutional rule, the felt necessity (or desire) of 
protecting all congressional incumbents, and the closely related, 
historically-based principle of drawing new districts with an eye towards 
the interest of state senatorial aspirants for congressional office. These 
forces, especially incumbency protection and aiding senatorial aspirants, 
drove the idealized minority opportunity districts from their cores and into 
the shapes and configurations ultimately assumed by CDs 18, 29, and 30.

Overall, as the district court found, the state succeeded nearly 
perfectly in realizing its related goals of incumbency protection and aiding 
senatorial aspirants. No congressional incumbent of either party was 
paired with another, despite the addition of three new congressional 
districts, two in Texas’s two most populous counties and one anchored in 
the state’s third most populous county. In the 1992 election following 
redistricting, every incumbent save one (who had been the object of highly 
publicized criminal inquiries) ran and won reelection. Three former state 
senators ran for the three new congressional seats, and all three won.

Accomplishing this goal, however, significantly perturbed the 
configuration (though not the demographics) of the idealized minority 
opportunity districts in Harris and Dallas counties. In Harris County, two 
state legislators, Senator Green and Representative Martinez, were the 
prime aspirants for any new Harris County Hispanic opportunity district 
that was to be created. Their state legislative political bases lay in slightly 
different sectors of the county, and each began to tug and pull at the 
idealized district, trying to move as much of it as possible into his home 
territory (while still maintaining its integrity as an Hispanic opportunity 
district). Their tug-of-war, fired by personal political ambitions, 
significantly distorted the idealized district. Further complicating their 
effort was the two decade-old black opportunity district, CD 18. 
Incumbency protection compelled its maintenance, but so did voting rights 
law, which required it to remain a black opportunity district. Incumbency



9

protection blocked CD 18’s movement to the south and east of its core, 
into the territory of CD 25, because a Democratic incumbent there wished 
to maintain his Democratic base. That base would be severely eroded 
were black voters (who vote Democratic to the order of 97%) moved into 
CD 18 to maintain its legal integrity as a minority opportunity district. 
These largely non-racial forces, combined with strict adherence to the one 
person, one vote rule and numerous idiosyncratic political factors, led to 
CD 18 and CD 29 entwining each other.

The shaping of CD 30 in Dallas primarily resulted from the 
efforts of two powerful Anglo Democratic incumbents, one to the east of 
the core of the idealized district (in what became CD 24) and one to the 
west (in what became CD 5), trying to hold onto as much of their 
Democratic political bases as they could, while still permitting CD 30’s 
creation. The reason for this dynamic was that the idealized black 
opportunity district and the core of CD 30 effectively worked as a wedge 
driven directly into the middle of the old CD 5 and the old CD 24.

As CD 5’s incumbent successfully peeled Democratic voters from 
the east and CD 24’s incumbent did the same thing in the east, the state 
senatorial aspirant (then-Senator, now-Congresswoman Johnson) for what 
became CD 30 had to move into other Dallas territory, largely to the 
north, to find population for the one person, one vote rule and Democratic 
voters for political viability, all the while maintaining the district so as to 
avoid running afoul of section 2. Just as numerous idiosyncratic factors 
played on the shape of the Harris County minority opportunity districts, 
so they did in Dallas. A desire to have part of the Dallas-Fort Worth 
International Airport in the district led Senator Johnson to extending an 
arm of the district into that comparatively remote and unpopulated 
territory. Another arm of CD 30 extended to Grand Prairie, a primarily 
white Metroplex city sitting astride the Dallas/Tarrant county line, where 
Senator Johnson and CD 24’s incumbent forcefully contended for what 
each viewed as friendly territory. (CD 30’s Grand Prairie portion is 59% 
white and only 14.7% black.) Yet another loop, first to the north then 
back to the east, reached for two areas, one of white Jewish voters who, 
though not in her senatorial district, had been supportive of Senator 
Johnson during her political career and one of middle-class black voters 
with religious and social ties to the district’s core.



10

Maps introduced by the state broke the three districts into cores 
and fingers in order to analyze the population and demographic make-up 
of the district. St.Exs. 33 (CD 30), 61A (CD 18), & 61B (CD 29). They 
show that the district cores are primarily minority, while the extensions 
from the cores are primarily Anglo.

The story of how these districts acquired their shape is complex 
and highly nuanced. Race was a factor, but only one among many. The 
districts’ idealized shapes, found in State’s Exhibit 12, reveal what their 
shape would have been had race and compactness been the only factors.

Lower court’s decision

In holding CDs 18, 29, and 30 unconstitutional under the Shaw 
framework, the district court did not reject all the state’s arguments. It 
accepted that the state successfully protected incumbents of both parties 
and furthered the interests of state senatorial aspirants. It accepted that 
these kinds of objectives had regularly informed, indeed driven, earlier 
Texas congressional redistricting efforts. The court also accepted that 
race-conscious redistricting is not in itself unconstitutional.

The court, however, held that each of the three invalidated 
districts was of a bizarre shape, notwithstanding their confinement to a 
one-county urban locale in a 254-county state which is the second largest 
territorially in the nation. In connection with that conclusion, the court 
held that the shapes of district boundaries are part of the “essence” of a 
Shaw claim. J.S. App. 53a n.40.

The court s opinion is not entirely clear on whether it requires 
Shaw-type plaintiffs to establish that race is the only factor explaining the 
shape of a district. Instead, it posits two poles between which lie a Shaw 
claim. At one pole is the circumstance in which the governmental entity 
has drawn irregularly shaped districts in an obvious effort to exclude 
voters based on race; at the other is the circumstance in which racial 
classifications of voters are made but the court’s definition of “traditional” 
districting principles are used to make the classification. The latter is 
constitutionally acceptable and the former is not. J.S. App. 52a-53a. The



11

court places the state’s efforts in CDs 18, 29, and 30 in the former, 
unacceptable category. In the course of reaching this conclusion, 
however, the court expunged incumbency protection from the approved 
list of traditional districting principles, J.S. App. 56a,6 and further stated 
that racial gerrymandering was an essential part of incumbency 
protectionf.]” J.S. App. 65a.

Based upon the foregoing analysis, the court subjected the state’s 
redistricting plan to strict scrutiny. The court begins this level of inquiry 
by reading Shaw to hold “that compliance with the Voting Rights Act 
might be a compelling state interest that, if narrowly tailored, would 
withstand . . . strict scrutiny[.]” J.S. App. 69a. The court then holds that 
the state satisfies strict scrutiny only if it proves that the minority 
opportunity districts actually drawn in the redistricting plan were required 
by section 2 or section 5 of the Voting Rights Act. J.S. App. 70a-72a. It 
holds:

[T]o be narrowly tailored, a district must have the least 
possible amount o f  irregularity in shape, making 
allowances for traditional districting criteria.

J.S. App. 72a (emphasis added).

The court never addresses whether the Voting Rights Act 
reasonably could have been read by the legislature to require the drawing 
of three minority opportunity districts of some sort in the two counties. It 
makes no firm conclusions as such about the Voting Rights Act’s 
requirements or whether they required (or reasonably could have been 
read to require) that three minority opportunity districts be drawn in the 
vicinity where they were.^ Instead, the court skips any conclusion about

Tliere, the court states that Shaw nowhere refers to incumbent protection as a 
traditional districting criterion.”

'J
The court does treat avoiding Voting Rights Act liability as a compelling 

governmental interest. J.S. App. 76a. While it is not entirely clear, there are hints in 
the decision that the legislature reasonably could have concluded that sections 2 and 5 
of tlie Voting Rights Act required the creation of minority opportunity districts in Harris 
and Dallas counties. The plaintiffs must have read the facts, the law, and these hints



12

compelling governmental interest and finally concludes that CDs 18, 29, 
and 30, as actually drawn in the plan, are not narrowly tailored and points 
to the “dispositive fact that alternative plans for Districts 18, 29, and 30 
were all much more geographically and otherwise logical[.]” J.S. App. 
73a.

THE QUESTIONS PRESENTED ARE SUBSTANTIAL

The Court in Shaw v. Reno countenanced a new, “analytically 
distinct” claim in the equal protection law of redistricting and voting 
rights. Under S/tow:

[R]edistricting legislation [is unconstitutional if it] is so 
extremely irregular on its face that it rationally can be 
viewed only as an effort to segregate the races for 
purposes of voting, without regard for traditional 
districting principles and without sufficiently compelling 
justification.

113 S.Ct. at 2824. The Court termed this racial gerrymandering and 
defined it as “the deliberate and arbitrary distortion of district boundaries .
. for [racial] purposes.” Id. at 2823. The Court held that a complaint 
against the North Carolina district stated a claim and sent the case back to 
the district court for trial.

Shaw has left much uncertainty in its wake. Questions abound 
about the standards for determining whether a configuration is so irregular 
that it implicates the Shaw doctrine; about the constitutional effect of the 
play of non-racial factors on a district’s shape; about the burdens of 
persuasion and proof for the different Shaw elements; about the interplay 
of sections 2 and 5 of the Voting Rights Act with the Shaw elements; and 
about what constitutes narrow tailoring.8

similarly to the state for tire remedial plans they proffered to the court purported to 
create two minority opportunity districts in Harris County and one in Dallas County.

g
There are no settled expectations as a result of Shaw. The decision itself was on a 

case brought up from a dismissal for failure to state a claim. The decennial redistricting 
avalanche that follows the census was completed before Shaw and will not be repeated, 
except as a product of Shaw and lingering Voting Rights Act challenges, until half a



13

Lower courts have been flooded with Shaw challenges and have 
interpreted Shaw in fundamentally different ways. In the congressional 
redistricting sphere alone, decisions in Texas (Vera v. Richards), 
Louisiana (Hays v. Louisiana), Georgia (Johnson v. Miller), North 
Carolina (Shaw v. Hunt), and California (DeWitt v. Wilson) have varied 
not only in their facts, but in their analysis of Shaw* 9

The decision in the Texas case differs from the others in 
significant ways. It is the only case involving the invalidation of localized 
urban districts. It is the only case in which incumbency protection is 
expressly excluded from the category of traditional districting principles. 
It is the only case in which a preexisting minority opportunity district (CD 
18) is invalidated. It is the only case in which a legislatively developed 
plan received neither a threatened nor actual section 5 objection and was 
explicitly upheld as consistent with section 2 and the Equal Protection 
Clause’s strictures against racial discrimination and partisan 
gerrymandering. It is the only case invalidating more than one district.

I. Whether the lower court erred: (i) in holding that
proof that more compact, regularly shaped minority 
opportunity districts could have been drawn but were not 
because of non-racial politics is irrelevant to demonstrating 
that race is not the sole or overriding reason for the irregular 
shape of minority opportunity districts; and (ii) in holding 
that, on the contrary, such proof demonstrates an inability to 
meet the narrow tailoring requirement of strict scrutiny?

The largely uncontradicted facts establish that the state would 
have been in violation of section 2 of the Voting Rights Act had it not 
drawn a black opportunity district in the Dallas area and an Hispanic 
opportunity district in the Houston area and of section 5 of the Act had it 
not maintained a black opportunity district in the Houston area.

decade from now. Tlnis, now is the time to correct misunderstandings that Shaw may 
have created.

9 Die Court already has docketed appeals in three of these cases: Hays as No. 94- 
558; Johnson as No. 94-631; and DeWitt as No. 94-275.



14

Hypothetical districts sufficient to meet the first threshold factor of 
Thornburg v. Gingles, 478 U.S. 30 (1986), were possible.

The facts also establish that, while adhering to Voting Rights Act 
requirements, the state abandoned the ideal configurations of the 
hypothetical districts and drew what became the very real CDs 18, 29, 
and 30 because of raw redistricting politics. The central tenet of that 
politics was in 1991 what it had been throughout Texas congressional 
redistricting history: the protection of incumbents and the related tenet of 
aiding state senatorial aspirants for Congress.

Thus, non-racial real politics changed the legal ideals of Gingles 
minority opportunity districts into carefully crafted, actual districts well 
within the historical mainstream of Texas redistricting. The state’s 
understanding was that it has constitutional breathing space under Shaw 
to let political reality shape legal ideals as long as the political reality is 
not racial.

The district court saw things differently, not so much on the facts, 
but in terms of Shaw's constitutional constraints. In fact, its reading of 
Shaw is the virtual antithesis of the state’s. Resolution of this difference 
is a necessity if states are ever to have any sense of their constitutional 
obligations while drawing congressional districts that comply with their 
own traditions and federal voting rights and one person, one vote 
requirements. If redistricting is to remain what it always has been, 
“primarily the duty and responsibility of the State through its legislature,” 
Growe v. Emison, 113 S.Ct. 1075, 1081 (1993), states must be apprised 
of the degree to which they are constitutionally compelled to adhere to 
non-constitutionally based federal judicial views about what is a legitimate 
traditional districting criterion, what district shapes are acceptable, and 
the degree to which idealized minority opportunity districts are unalterable 
by state policy choices.

The lower court’s rationale flies in the face of Shaw. Shaw held 
that racial gerrymandering is the distortion of district boundaries to a 
degree that is explainable only on the basis of race. The lower court, on 
the other hand, found redistricting unconstitutional if reasons other than 
race, and outside the court’s own definition of traditional districting



15

principles, distorted boundaries that could have been drawn for racial 
reasons.

Other courts have rejected this expansive reading of Shaw and 
taken the Court at its word. In the Georgia case, the court ruled that there 
is no racial gerrymander, and thus no occasion for strict scrutiny, “[i]f 
race, however deliberately used, was one factor among many of equal or 
greater significance” in the plan. Johnson v. Miller, 1994 WL 506780 
(S.D. Ga. Sept. 12, 1994), slip op. at 14. In the California case, the court 
read Shaw as condemning redistricting based “solely” on race. DeWitt v. 
Wilson, 856 F.Supp. 1409, 1412 (E.D.Cal. 1994).

The question thrown into relief by contrasting the lower court’s 
reading of Shaw with the California and Georgia courts’ reading is critical 
and calls for resolution by this Court. Is a state that is under Voting 
Rights Act compulsion to draw minority opportunity districts 
simultaneously under constitutional compulsion to adhere to supposedly 
non-constitutional but nonetheless judicially imposed criteria in drawing 
the districts, even though non-racial, state-developed criteria permit the 
drawing of differently shaped districts? Shaw’s words and other court 
rulings interpreting them answer “no;” only the lower court here has 
answered “yes.” Whether the law of redistricting has become so rigidified 
“  the state’s choices so constricted — in the wake of Shaw needs 
clarification.

II. Whether, in a statewide redistricting, localized, single­
county urban minority opportunity districts with a lesser 
degree of single-race dominance than every other district in 
the state can be deemed so facially irregular that Shaw ’s 
threshold test is satisfied?

The contours of Shaw’s threshold test of shape remain 
undeveloped and one of the decision’s most puzzling aspects. This case 
presents a unique circumstance to the Court. All three challenged Texas 
districts are different in kind from the districts challenged in the three 
other states whose cases are either at the Court or on their way here.

North Carolina District 12 is 160 miles long and passes through 
10 of the state’s 100 counties. Shaw v. Reno, 113 S .Ct. at 2820-21. The 
current version of Louisiana District 4 covers 15 parishes, divides four of



16

the state’s major cities, and is served by four media markets. Hays v. 
Louisiana, 1994 WL 477159 (W.D. La. July 29, 1994). Georgia District 
11 splits 8 counties and 5 municipalities and covers four discrete, widely 
spaced urban centers. Johnson v. Miller, supra.

The Texas districts are fundamentally different. Each is a 
localized, single-county10 urban district, served by a single economy and a 
single media market. They are the three least segregated congressional 
districts in Texas, taking racial segregation in its popular sense of single­
race dominance. These characteristics are set against the backdrop of a 
state geographically much larger than the other three states and racially 
more complex because of its tri-ethnic makeup.

With resolution set at state-level, the appropriate setting for a 
statewide redistricting plan, CDs 18, 29, and 30 do not give the 
appearance of being vastly distorted, either in isolation or in comparisons. 
See, e.g., Att. B (end of statement).

Viewed historically, the three challenged districts are not 
extraordinary either. In the 1960’s, in the redistricting following after the 
advent of the one person, one rule, the Texas legislature created a district - 
- old District 6, sometimes termed the Tiger Teague district — running in a 
narrow strand of counties from southeast of Houston through rural east 
Texas into bits at the southern ends of both Tarrant and Dallas counties. 
When compared at scale, it dwarfs CDs 18, 29, and 30 and reduces 
whatever in their shapes that was distasteful to the lower court to 
insignificance.11

The Court appears in Shaw to have rejected the position of one of 
the two testifying plaintiffs in this case, Mr. Chen, who stated that he

10 Recall that barely over 1% of CD 30’s population falls outside Dallas County.

11 As explained through the evidentiary trial statement of a former state senator and 
state Supreme Court justice, this Texas district of 30 years ago was the original spur for 
the comment that one could drive down the district with both doors open and kill half 
the people in the district. Contemporary computer technology provides the tools for 
more precise work in the modem era. Still, controlling for technological capability, old 
District 6 is a standard-setter.



17

views these kinds of assessments about shape as “personal judgment” as 
to which “[tjhere is no right or wrong.” Tr. 1:41. Under Shaw, the shape 
takes on constitutional significance. Nonetheless, content now must be 
given to this seemingly critical matter.

Shape is a contextual matter. The interplay of historical and 
contemporary comparisons, the degree of resolution of the viewing 
microscope, comparative technologies, and community location affect the 
description. Here, all those factors point toward a conclusion that, in any 
meaningful constitutional sense, the three minority opportunity districts 
here are not bizarre within Shaw }s meaning. Holding otherwise threatens 
to enmesh the Court in redistricting inquiries from which it can never 
disentangle itself and for which it can never offer constitutional guidance 
to the trial courts.

Shaw did describe the archetype of a distorted district. It is a 
construct that includes individuals who belong to the same race, but who 
are otherwise widely separated by geographical and political 
boundaries.” 113 S.Ct. at 2827 (emphasis added). Not one of the three 
districts invalidated by the trial court fits the Shaw archetype.

While the question of what is irregular enough to pass the Shaw 
threshold is important and needs definitive resolution, the districts 
involved in this case fall far enough short of the threshold of bizarreness 
that summary disposition is possible. The comparative pictures attached 
to this statement, combined with both the highly integrated nature of the 
districts and their single-county urban character, are enough to answer 
that these districts do not raise a Shaw issue.

III. Whether an unquestioned state tradition of 
incumbency protection (and the related tradition of furthering 
senatorial aspirations) may be judicially excluded from the 
realm of traditional districting principles which, if followed, 
overcome a Shaw  challenge?

That Texas has a long, unbroken tradition of protecting 
incumbents in congressional redistricting goes unquestioned by the lower 
court. That Texas succeeded in honoring that tradition in its 1991 
congressional redistricting also goes unquestioned by the lower court.



18

This Court recognized and refused to “disparage” this Texas 
tradition over two decades ago, noting the state’s interest in “maintaining 
existing relationships between incumbent congressmen and their 
constituents and preserving the seniority the members of the State’s 
delegation have achieved” in Congress. White v. Weiser, 412 U.S. 783, 
791 (1973). More broadly, the Court has recognized avoidance of 
contests between congressional incumbents and “preserving the cores of 
prior districts” as legitimate redistricting objectives. Karcher v. Daggett, 
462 U.S. 725, 740 (1983).

The lower court, however, saw things differently. In the context 
of a Shaw challenge, the court removed incumbency protection from the 
approved list of traditional districting principles. This unprecedented step 
had major constitutional consequences. The court read Shaw to permit 
distorted district boundaries if they honored traditional districting 
principles. The court also knew that incumbency protection was a Texas 
redistricting tradition and that the evidence established that the prime 
determinant of the actual boundaries of the ultimately invalidated districts 
was incumbency protection. Thus, the only way to find a Shaw violation 
would be to excise incumbency protection as a legitimate state 
consideration. This the court did.

Its exclusion of incumbency protection was both fatal to Texas’s 
defense and contrary to the decision in Georgia’s Shaw congressional 
redistricting case, Johnson v. Miller, which specifically lists protecting 
incumbents as a traditional districting principle. Slip op. at 12. More 
fundamentally, it raises the troubling specter that traditional districting 
principles, explicitly acknowledged in Shaw to be a non-constitutional 
concept, is an infinitely manipulable judicial concept. This approach 
carries Shaw far afield from its constitutional base, and the Court should 
take up this question to return Shaw to its proper home.

Because Shaw makes clear that the traditional districting 
principles it employs as part of its constitutional framework are not 
constitutional in origin, and because redistricting is fundamentally a 
matter of state sovereignty, the only permissible source for discerning 
traditional districting principles is the state and its traditions and laws. 
The lower court disregards this fundamental tenet and converts the



19

concept of traditional districting principles into a highly manipulate 
federal judge-made rule. Wielded this way, Shaw’s scope is vastly 
broadened, and the discretion given to local federal district courts is 
widened far outside heretofore confined constitutional banks. Nothing in 
Shaw, nothing in this Court’s redistricting precedents, and nothing in the 
doctrine of federalism justifies the step taken by the district court.

It is crucially important to the states that the non-constitutional 
concept of traditional districting principles be reconfined to its origin: the 
histories, political traditions, and laws of the states themselves. The lower 
court’s approach is an unjustified, unprecedented narrowing of state 
redistricting prerogatives.

IV. Whether the lower court erred in applying Shaw  to
invalidate the three minority opportunity districts?

This jurisdictional statement repeatedly points to the confusion 
the district courts have drawn from Shaw. Their widely varying 
interpretations necessarily leave conscientious state legislators adrift in 
trying to comply with Shaw's dictates in drawing congressional districts. 
Even within the district court decision brought before the Court in this 
case, the analysis is sufficiently fluid and ambiguous that the logical 
progression of holdings and subholdings is frequently lost.

Furthermore, the plaintiffs failed to establish much of the racial 
gerrymandering claim that Shaw assumed in the procedural posture of that 
appeal. They did not show that creation of the minority opportunity 
districts exacerbated racial bloc voting. See 113 S.Ct. at 2827. Nor did 
they show that elected representatives of the districts ignored their polity 
as a whole while focusing nearly exclusive attention on the minority group 
given an equal electoral opportunity through the district’s creation. See 
id. The evidence, in fact, points in precisely the opposite direction.

To avoid the pitfalls of focusing too narrowly on what the lower 
court said, instead of looking at what it actually did, the state notes the 
importance of the situation- and fact-specific question raised by the lower 
court’s action. Does the Equal Protection Clause prohibit a state from 
reacting to racially polarized voting patterns and the associated demands 
of sections 2 and 5 of the Voting Rights Act by drawing minority 
opportunity districts that are localized, single-county, and urban in



20

character, and that are the most racially integrated in the state, even if 
more idealized compact minority opportunity districts could have been 
drawn but were not for such non-racial reasons as incumbent protection?

Shaw raises this question but does not answer it. Answering it 
would be a tremendous step toward clarifying Shaw’s ambiguous reach.

V. Whether plaintiffs who do not claim harm from a 
diluted vote, who have not been invidiously discriminated 
against, and who otherwise point to no concrete injury have 
standing to press an equal protection claim?

Standing is a threshold issue, a kind of constitutionally compelled 
docket control. Shaw did not address the issue of constitutional standing, 
and, inasmuch as implicit pronouncements on constitutional issues do not 
settle them, cf. Edelman v. Jordan, 415 U.S. 651, 671 (1974), standing 
remains both open and important.12

Despite Shaw’s apparent premise that individualism matters in 
redistricting, the plaintiffs did not identify a single concrete harm which 
they would suffer from HB1 and the configurations of the districts in 
which they lived and voted. They testified to nothing indicating that HB1 
subjected them to a comparative disadvantage with some real or 
hypothesized other person.

Blum, who lives in CD 18, indicated that “more than anything 
else the abandonment of the “idea of a color-blind society” that he 
perceived in HB1 was the “moral reason” for his involvement. His most 
specific statement was that white voters are injured by such redistricting 
because it polarizes us from our neighbors [and] segregates us by race.” 
Chen, who does not live in one of the invalidated districts, testified about a 
series of related beliefs in equality.' Orcutt, a resident of CD 30, testified 
to her desire to live in the adjoining district, CD 3, which is represented by 
a Republican congressman more aligned with her political views but 
emphasized that CD 30 was not a segregated district. Vera, a resident of

19 Shaw’s failure to substantively treat the standing issue has been described as a 
remarkable departure.’ Karlan, All Over the Map: The Supreme Court’s Voting

Rights Trilogy, 1993 Sup.Ct.Rev. 245, 278.



21

CD 29, testified that he found it offensive when race is used as a 
redistricting factor. Thomas, a resident of CD 29, expressed “concem[]” 
about confusion, but later agreed that hers is a “theoretical concern” and 
that she does not feel personally discriminated against in the congressional 
redistricting process. Powers’ testimony was of a similarly vague nature.

One of the three essential elements of the constitutional law of 
standing is that plaintiffs must establish “injury in fact,” meaning that 
they must demonstrate some harm that is “concrete and particularized” 
instead of merely “conjectural or hypothetical.” Lujan v. Defenders o f  
Wildlife, 112 S.Ct. 2130 (1992). Generalized grievances are insufficient 
for standing, and the mere claim of a right to a particular type of conduct 
falls short of constitutional minimums. Allen v. Wright, 468 U.S. 737 
(1984).

In Northeastern Florida Chapter o f  the Associated General 
Contractors o f  America v. City o f  Jacksonville, 113 S.Ct. 2297 (1993), 
the Court explained that, when the claim is a denial of equal protection, 
plaintiffs show harm by demonstrating that they face higher hurdles. 
Under Northeastern Florida, equal protection standing does not require 
plaintiffs also to establish that, once the hurdles were lowered, they would 
have cleared them and won. Critical to the Northeastern Florida 
outcome, however, was the fact that the plaintiffs there were complaining 
of higher hurdles in competing for a concrete benefit: municipal
construction contracts. Otherwise, nothing would have differentiated the 
Northeastern Florida contractors from the contractors in Worth v. Seldin, 
422 U.S. 490 (1975), who failed to establish that they were competing for 
anything.13

The plaintiffs in this case do not complain of higher hurdles — or 
any other comparative disadvantages — which deny them an equal 
opportunity to compete for something concrete. They specifically eschew 
any claim of vote dilution, which would be a concrete harm. They

13 Allan Bakke’s goal in Regents o f the University o f California v. Bakke, 438 U.S. 
265 (1978), was as concrete as the contractors in Northeastern Florida', he wanted a 
medical education at the Medical School at the University of California at Davis but 
arguably faced higher hurdles to admission. The palpability of his goal was an essential 
element imparting standing. Id. at 280 n. 14.



22

presented no evidence that HB1 somehow stamps them with the kind of 
badge of inferiority that marked plaintiffs in the Court’s historic equal 
protection cases. See, eg., Brown v. Board o f  Education, 347 U.S. 483, 
493 (1954); Strauderv. West Virginia, 100 U.S. 303, 308 (1879).

Striking at the public corrective (minority opportunity districts) 
for private discrimination (racially polarized voting), they claim harm 
from not living in a color-blind society and point to public reactions not 
private origins as the cause of their harm. Compare Palmore v. Sidoti, 
466 U.S. 429, 431 (1984) (‘[p]rivate biases may be outside the reach of 
the law, but the law cannot, directly or indirectly, give them effect”). 
Nothing differentiates these plaintiffs from any other voter in the state 
except their highly developed sensitivity. Nothing in HB1 places the 
plaintiffs at a comparative disadvantage.14

Whether such abstract harm is enough to impart standing in the 
Shaw context is an important question with far-reaching implications. It 
can expose states to redistricting challenges from virtually any quarter at 
any time on the grounds that the redistricting plan is not color-blind 
enough to suit the tastes of a given voter. It carries the potential of 
converting the three-judge courts hearing these cases into virtual open 
forums for public debate on the meaning of democracy and color­
blindness, untethered to the case or controversy foundation governing 
other kinds of cases.

This ironic result, for a function more at the center of the state’s 
policy control than most other governmental functions, would stretch 
standing further than ever before. It would so divorce standing from 
normal understandings of the injury in fact requirement that in the thirty 
years since Baker v. Carr, 369 U.S. 186 (1962), redistricting law would 
have advanced from lying wholly outside federal judicial consideration to 
being an area only loosely bound by traditional federal jurisdictional 
restraints.

Comparative disadvantage is an equal protection concept. The Fifteenth 
Amendment might embody a different standing concept friendlier to the plaintiffs; 
however, they expressly abandoned their Fifteenth Amendment claim prior to trial.



23

Offended sensibilities were not enough for standing in Allen v. 
Wright, where the reality was racial discrimination; whether they are 
enough for standing under Shaw, where the ideal is color-blindness, will 
further determine Shaw’s scope.

VI. Whether the court exceeded its equitable powers and 
encroached on the state’s domain by exposing the legislature 
and its members to possible civil contempt and impermissibly 
confining the state’s remedial options to formal legislative 
enactments (protectively, based on a cautious interpretation of 
the lower court’s order)?

The district court ordered that “the Texas legislature shall develop 
on or before March 15, 1995, a new Congressional redistricting plan” 
consistent with the court’s opinion invalidating three congressional 
districts established by HB1. J.S. App. 2a. A cautious interpretation of 
this language makes it an injunction to enact legislation instead of a 
typical remedial scheduling order giving the state an opportunity to correct 
a constitutional defect. This appellate point is a provisional one, premised 
on the precautionary reading.

As so read, the order has two basic flaws. First, it disregard 
voting rights precedents permitting legislative bodies to offer proposed 
remedial plans, to which judicial deference is owed, without using formal 
legislative enactments. See, e.g., Wise v. Lipscomb, 437 U S. 535 (1978), 
and Burns v. Richardson, 384 U.S. 73 (1966). Second, it disregards this 
Court’s direction in Spallone v. United States, 493 U.S. 625 (1990), to 
federal district courts to exercise extreme caution in deploying their civil 
contempt powers to force governments to pass legislative enactments.

By rigidifying what constitutes a legislative remedial proposal in 
voting rights and redistricting litigation, and by converting a rule of 
opportunity, see, e.g., McDaniel v. Sanchez, 452 U.S. 130, 150 n.30 
(1981), into a rule of compulsion, the district court strayed beyond 
federalism’s equitable bounds, and a corrective is warranted.

CONCLUSION

The Court should note probable jurisdiction. Summary reversal 
is appropriate on the question of whether the three districts are so 
irregularly shaped that further inquiry is necessary under the Shaw



24

framework; otherwise 
consideration.

October, 1994

the appeal should be set down for plenary

Respectfully submitted,

Dan Morales
Attorney General of Texas

Jorge Vega
First Assistant Attorney General

Renea Hicks*
State Solicitor 
*Counsel o f  Record

P-0. Box 12548, Capitol Station 
Austin, Texas 78711-2548 
(512) 463-2085

Attorneys for State Appellants



Attachment A



District 19

District 21

District 6

District 18

D istrict 30

District 29

COMPARISON (TO SCALE) OF SELECTED CONGRESSIONAL DISTRICTS
PLANC657 DISTRICTS 6, 18, 19, 21, 29, & 30

i i f  i f i u i r

I* *I n r i i i M t i i t i i t

Attachment B