Application to Stay, Pending Appeal, Injunction & Other Remedial Proceedings

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No. 94-805 

“ IN THE SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1994 
  

ANN RICHARDS, Governor of Texas, et al., 

Appellant-Applicants, 

vs. 

AL VERA, et al., 

Appellees-Respondents. 

  

APPLICATION TO STAY, PENDING APPEAL, 
INJUNCTION AND OTHER REMEDIAL PROCEEDINGS 

OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN 
DISTRICT OF TEXAS 

  

To the Honorable Antonin Scalia, Associate Justice of the Supreme 

Court of the United States and Circuit Justice for the Fifth Circuit: 

Pursuant to Rule 23 of the Rules of this Court and the All Writs Act, 28 

U.S.C. § 1651, the Governor, the Lieutenant Governor, the Speaker of the 

House of Representatives, the Attorney General; and the Secretary of State of 

Texas (respectively Ann Richards, Bob Bullock, Pete Laney, Dan Morales, 

and Ron Kirk, collectively termed “the state”), official-capacity defendants 

below and appellants here, respectfully apply for a stay of the three-judge 

district court’s injunction of September 2, 1994, directing that “the Texas 

legislature shall develop on or before March 15, 1995, a new Congressional 

redistricting plan,” as well as of any other district court remedial proceedings. 

This stay would remain in effect pending the Court’s disposition of the state’s 

appeal, docketed as No. 94-805, of the three-judge district court’s injunction 

 



  

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entered on September 2, 1994, and amended nunc pro tunc on September 14, 

1994, prohibiting use of the state’s current congressional redistricting plan 

for the 1996 elections. 

As already indicated, the state’s appeal of the district court’s 

invalidation of three of its congressional districts is pending before the Court 

as Richards v. Vera, No. 94-805. The appendix accompanying the state’s 

jurisdictional statement (“J.S. App. __a”) contains the district court’s two 

remedial phase orders of September 2, 1994, J.S. App. la-2a, and of 

September 14, 1994, J.S. App. 3a-4a, as well as the underlying opinion and 

declaratory judgment invalidating three of Texas’s thirty congressional 

districts, J.S. App. 5a-84a. It already is on file with the Court. The orders as 

reproduced in that appendix will be the reference point for this stay 

application. In addition, attached to this application are the state’s motion 

for stay at the district court level (Att. A) and the district court order denying 

it (Att. B). E 

- STATEMENT. 

1 This lawsuit by six Texas voters originated less than a year ago, 

on January 26, 1994, and went to one-week trial before a three-judge federal 

district court on June 27, 1994. J.S. App. 10a-11a. 

2. On August 17, 1994, the district court issued a lengthy opinion 

declaring three Texas congressional districts unconstitutional under the 

Equal Protection Clause as adumbrated in Shaw v. Reno, 113 S.Ct. 2816 

(1993). J.S. App. 76a. After a short period for briefing on the topic of further 

relief, see id., the court issued an order on September 2, 1994, declining to 

disrupt the 1994 general elections for Congress but, through a nunc pro tunc 

order on September 14, 1994, enjoining use of the challenged congressional 

redistricting plan for 1996 Texas congressional elections. J.S. App. 2a, 4a. 

 



  

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3. The second paragraph of the September 2nd order directed: 

that the Texas legislature shall develop on or before March 15, 
- 1995, a new Congressional redistricting plan in conformity with 

this court’s previous opinion during the 1995 regular legislative 
session that convenes on January 10, 1995].] 

J.S. App. 2a. In the third paragraph of the order, the district court indicated 

that it would set a “remedial hearing” on the state’s redistricting efforts near 

the March 15, 1995, deadline. | 

4. The state has appealed the district court’s injunctive orders to 

this Court in the Richards v. Vera case.! Two other appeals raising largely 

the same issues, one by private intervenors on behalf of minority voting 

interests and one by the United States, also have been docketed, respectively, 

as Lawson v. Vera, No. 94-806, and United States v. Vera, No. 94-988.2 The 

initial round of briefing has concluded for all three of the related appeals, and 

they await Court action on whether it will note probable jurisdiction. 

5. On November 17, 1994, the state moved the district court to stay 

the March 15th legislative deadline, see Att. A hereto. The district court 

denied the stay motion on November 21, 1994. See Att. B hereto. The one- 

page stay denial, signed by one of the three district court judges, provides no 

explanation for its action. 

6. The biennial regular .session of the 74th Texas Legislature 

convenes on January 10, 1995, and concludes on May 29, 1995. 

  

1 One of the questions presented by the state -- Question No. 7, which is provisionally raised -- is 

whether the district court acted within its equitable discretion in enjoining the legislature to enact 

legislation. See Richards v. Vera Jurisdictional Statement at i & 23. 

2 The six plaintiff voters voluntarily dismissed their appeal of the district court’s August 17, 1994, 
denial of their claim against twenty-one other Texas congressional districts. This dismissal was 

formalized in a district court order of November 21, 1994. 

 



  

* . * 
DISCUSSION 

The constitutional rules for congressional redistricting are in a 

considerable state of flux and uncertainty at this point. The Court’s decision 

in Shaw v. Reno has precipitated a series of challenges to state congressional 

redistricting plans and district court rulings have come in connection with 

challenges in California, North Carolina, Georgia, and Louisiana, in addition 

to Texas. 

Widely varying interpretations of Shaw v. Reno have issued from the 

district courts; appeals of all of them are now docketed in this Court and 

await disposition. See, e.g., DeWitt v. Wilson, No. 94-275 (California); Shaw v. 

Hunt, No. 94-923 (North Carolina); Johnson v. Miller, No. 94-631 (Georgia); 

and Louisiana v. Hays, No. 94-627 (Louisiana). At this point, there is no 

clear standard on such major issues as what constitutes a traditional 

districting criterion, what constitutes a sufficiently irregular district shape to 

implicate other parts of the Shaw v. Reno construct, the degree to which race 

must play a role in a district’s shape to implicate strict scrutiny, and what 

constitutes narrow tailoring sufficient to satisfy strict scrutiny. 

There now exists more than just a possibility that the Court will 

further clarify the “analytically distinct” constitutional claim sketched by 

Shaw. Less than two weeks ago, on December 9, 1994, the Court announced 

that it will note probable jurisdiction in the Shaw cases out of Louisiana, 

United States v. Hays, No. 94-558, and Louisiana v. Hays, No. 94-627 

Among the questions presented by those appeals is the following: “Is 

intentional creation of majority-minority districts always subject to strict 

scrutiny?” Jurisdictional Statement of United States in No. 94-558. 

Thus, were Texas’s stay request here not granted, the Texas 

Legislature would face a judicial deadline for remedial action which will 

 



  

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arrive well before guidance issues from this Court in the Louisiana case on 

one of the most basic of redistricting questions -- the basic role of race in 

redistricting. Forcing such legislative action now, or within the foreshortened 

time horizon established by the district court, would be to force state’s to act 

in what for all practical purposes is a jurisprudential vacuum. 

The situation would be nearly intolerable for a state such as Texas, 

which is subject to the preclearance requirements of section 5 of the Voting 

Rights Act. In the Fifth Circuit, remedial legislative redistricting plans must 

receive section 5 preclearance before submitting them for consideration by a 

federal district court during the remedy phase of a case. See, e.g., Lucas v. 

Bolivar County, 756 F.2d 1230, 1234 (5th Cir. 1985). 

Thus, were the current March 15th legislative deadline to hold, the 

state would be forced to take race into account in congressional redistricting 

to a degree necessary to obtain administrative preclearance from the United 

States Attorney General if it is to have any “voice” in what a remedial plan 

will be while at the same time having to operate under the uncertainties 

attending unresolved critical constitutional questions under active 

consideration by the Court at the very time the legislature is being forced to 

act. 

Compounding the near-paralyzing uncertainties is the fact that the 

urban context of what will be some of the most contentious aspects of any 

state remedial effort raises constitutional issues different than are raised in 

any of the other Shaw-type cases currently on the Court’s docket. Even the 

appellee voters concede that this urban context of Texas’s sake differentiates 

it from all others. Appellees’ Jurisdictional Statement at 13. 

As these appellee voters also concede, “this case presents an 

appropriate vehicle for the Court to provide useful additional guidance to 

 



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state legislatures[.]” Id. at 2; see also id. at 12. The state concurs in this 

statement but would add that such guidance is more than useful; it has 

become necessary. Steering between the demands of sections 2 and 5 of the 

Voting Rights Act and the as-yet uncertain command of Shaw, while 

simultaneously operating under the long-held standard that redistricting is 

“primarily the duty and responsibility of the State through its legislature,” 

Growe v. Emison, 113 S.Ct. 1075, 1081 (1993), is a nigh impossible task right 

now. The situation will not have improved by the March 15th legislative 

deadline. 

A conscientious legislator will be adrift on largely uncharted statutory 

and constitutional seas come March 15th.3 The remedial phase of a 

redistricting case should not force this kind of exercise in futility upon a 

state. Doing so, in fact, is fundamentally at odds with the principle of 

deference to state policy choices lying at the heart of the requirement that 

courts give states an opportunity to correct flaws in their redlstriciiii 

statutes. See, e.g., McDaniel v. Sanchez, 452 U.S. 130, 150 n.30 (1981). 

There is little if anything deferential in forcing the state to exercise the one 

opportunity it has in the dark. 

In addition to the uncertainty abroad at this point on the use of race in 

redistricting, the state has a more specific uncertainty confronting it. The 

constitutionality of three of its congressional districts are before the Court for 

review in this case, and the state cannot be expected to know what 

corrections are either required or permissible in the particular until the 

Court concludes its action on the appeal. In the absence of such specific 

guidance in this case, the state’s action again would be a shot in the dark -- a 

  

3 Perhaps more accurately, such a legislator would be guided by several mutually contradictory 
charts.  



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shot which has the potential to strike the unintended target of the Voting 

Rights Act. The state should not be forced to act in these circumstances. 

It has been commonplace in redistricting cases for the Court to grant 

stays of injunctions of state redistricting plans and related further remedial 

actions and proceedings pending the outcome of appeals on the basic liability 

question. See Wetherell v. DeGrandy, 113 S.Ct. 1 (1992); Voinovich v. Quilter, 

112 S.Ct. 1663 (1992); Growe v. Emison, 112 S.Ct. 1461 (1992). 

This nearly routine practice of granting stays in redistricting cases has 

been followed in the more recent spate of Shaw-type appeals. In the only two 

other Shaw-type cases in which stays have been sought, the Court has 

granted them. See Miller v. Johnson, 115 S.Ct. 36 (1994); Louisiana v. Hays, 

115 S.Ct. 31 (1994). The same kind of stay -- requiring a cessation of further 

remedy phase proceedings in the district court while the appeal pends in this 

Court -- is sought here as was granted recently in the Georgia and Louisiana 

congressional redistricting cases. 

The standards for granting a stay have recently been stated as follows 

in the appeal of a voting rights case from a three-judge district court: 

The issuance by a circuit justice of a stay pending appeal calls 
for consideration of not only the probability that the district 
court was wrong, but also the nature of (including responsibility 
for) the alleged injury that will occur in the absence of a stay, 
and the effect that a stay would have upon the public interest. 

Campos v. City of Houston, 112 S.Ct. 354 (1991) (Scalia, Circuit Justice).4 

The nature of the injury that will occur in the absence of a stay and the 

beneficial effect of a stay on the public interest are of most relevance and 

  

4 The “especially heavy burden” of trying to override an appellate court refusal to stay proceedings, 
see Edwards v. Hope Medical Group for Women, 115 S.Ct. 1, 2 (1994) (Scalia, Circuit Justice), is absent 

in this case because its procedural posture is that of a direct appeal from a district court. See Stern, 

Gressman, Shapiro, & Geller, SUPREME COURT PRACTICE (7th ed.) § 17.13 at 677, citing inter alia Clark 
v. Roemer, 498 U.S. 963 (1990) (“[w]here a direct appeal still lies to the Supreme Court from a district 
court decision, . . . a Justice will have no special reluctance to grant a stay where the district court has 

denied one”).  



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importance in the setting of this case. 

  

The potential for wasted legislative effort and for offending the 

principle of deference through offering only a false opportunity for remedial 

redistricting legislation are major harms that will affect the state if the stay 

is not granted. At its best, redistricting is a difficult, divisive task. Having to 

drop such other major legislative tasks as school financing and engage in 

what threatens to be a task untethered to helpful constitutional guidance and 

uncertain voting rights requirements can only heighten the divisiveness and 

legislative disharmony. 

The same concerns undergird the conclusion that the public interest 

would be served best by granting the stay. The interest of Texas citizens will 

not be furthered in any way by forcing legislative action on congressional 

redistricting until further constitutional guidance issues from the Court. 

Forcing such action could only engender further litigation efforts. The time is 

simply not right for legislative redistricting efforts until Shaw is further 

explained and the rules are clearer. — 

CONCLUSION 

For the foregoing reasons, this application should be granted. A stay should 

issue, lifting the March 15th deadline for remedial legislative action on 

congressional redistricting and stopping further remedial proceedings before the 

district court until the Court disposes of the state’s pending appeal in this case. 

 



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Respectfully submitted, 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 
First Assistant Attorney General 

in Lito 
RENEA HICKS* 

State Solicitor 
* Counsel of Record 

  

P. O. Box 12548, Capitol Station ig 
Austin, Texas 78711-2548 

(512) 463-2085 

FAX: (512) 463-2063 

ATTORNEYS FOR STATE APPELLANTS 

December 20, 1994 

 



»® ATTACHMENT A » 

UNITED STATES DISTRICT COURT 

  

SOUTHERN DISTRICT OF TEXAS 
HOUSTON DIVISION 

AL VERA, et al., § 

Plaintiffs, § 
5 

vs, § Civ. Action No. H-94-0277 

S 
ANN RICHARDS, etc., et al., § : 

Defendants. § 

STATE'S MOTION FOR STAY PENDING APPEALS 

—— 

The state defendants -- the Governor, Lieutenant Governor, Speaker of the 

House, Attorney General, and Secretary of State of Texas (collectively, “the state”) -- 

move the Court to stay further proceedings in this action, including the legislative plan 

deadline of March 15, 1995, pending Supreme Court disposition of the appeals by both 

sides of the dispute. The grounds follow: a 

1. On August 17, 1994, the Court declared three Texas congressional districts 

unconstitutional and twenty-one constitutional under the Shaw v. Reno framework. 

Then, on September 2, 1994, the Court entered a remedial phase scheduling order 

permitting the 1994 Texas congressional elections to go forward under the challenged 

plan (HB1) but directing: 

that the Texas legislature shall develop on or before March 
15, 1995, a new Congressional redistricting plan in 
conformity with this court's previous opinion during the 
1995 regular legislative session that convenes on January 10, 
1995 [and] that on or shortly after March 15, 1995, this court 
will hold a remedial hearing on the status of the legislature's 
redistricting efforts].] wt 

Order, 9/2/94912,3. es 

2: All parties have appealed some aspect of the Court’s August 17th and 
September 2nd rulings,! with the result that the validity of twenty-four of the state’s 
  

1 The state’s appeal protectively raises an issue about the validity of | 2 of the Court's September 2nd - 

 



  

# ® 
thirty congressional districts is or soon will be before the Supreme Court for disposition. 

The state and two sets of defendant-intervenors already have filed their jurisdictional 

Satements, effectuating formal Supreme Court docketing of their appeals and 

challenging the Court's ruling on three of the districts (Districts 18, 29, and 30). "Neither 

the United States, a defendant-intervenor, nor the. plaintiffs have filed their 

jurisdictional statements but they are due soon. Based on their positions below, the 

state anticipates that the United States will challenge the Court's ruling on the same 

three districts involved in the state's appeal and that the plaintiffs will challenge the 

Court's ruling upholding tiers one of the challenged districts. 

3. The state is aware of three other appeals now docketed and pending 

before the Supreme Court which raise issues under Shaw v. Reno: (i) the DeWitt v. 

Wilson appeal from California; (ii) the Louisiana v. Hays appeal from Louisiana; and (iii) ; 

the Johnson v. Miller appeal from Georgia. Another appeal, in the Shaw v. Hunt case 

from North Carolina, is due to be filed soon. Thus, including the instant case, the 

meaning of Shaw v. Reno for five state congressional redistricting plans currently is at 

issue before the Supreme Court. i 

4. The five pending sets of appeals present the Court with its first 

opportunity to further explain the Shaw v. Reno decision which announced a new, 

“analytically distinct” constitutional claim. Lower court interpretations of Shaw, as this 

Court highlighted in its August 17th decision, vary widely, and no uniform body of 

redistricting law has developed. Thus, against this backdrop and given the important, 

federalism-sensitive area (congressional redistricting and race) in which the 

constitutional battle is being fought, it is widely anticipated that the Supreme Court will 

  

order, based on a cautious interpretation of it as an injunction to enact legislation. Admitting its 
uncertainty about whether this Court intended that paragraph to be an injunction, the state nonetheless 
takes the precaution of assuming that the paragraph is an injunction insofar as the Court is concerned and 
argues that, based on that assumption, argues that it is an improper injunction because the Court lacks 
equitable discretion to order the state to enact legislation in these circumstances and because Supreme 
Court precedents permit the state's responsive remedial proposal in redistricting cases to take forms other 
than formal legislative enactments. : 

2. 

 



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give plenary consideration to one or more of the pending cases during the current court 

term and that further case law guidance will be out by the end of the term sometime in 

the early summer of 1995. ea 

5 At this point in the development of the Shaw v. Reno doctrine, there is 

virtually no way for a conscientious legislature to design a redistricting plan which 

simultaneously takes into account the state’ s interests, the constitution’s demands, and 

the strictures of the Voting Rights Act. Certainly, given the incompleteness of the 

doctrine’s development and the major splits among the lower courts in their application 

of what they discern the doctrine to be, nothing remotely approaching confidence can 

attend legislative action under current circumstances. 

6. In addition to the general problem of uncertainty in the redistricting 

realm, there is the problem for the Texas legislature in particular that the Supreme 

Court is poised to speak to the constitutional validity of twenty-four of the state’s thirty 

districts. Whatever the Court says -- whether it declines jurisdiction, notes it and 

upholds all districts, or notes it and validates some while invalidating others -- will 

have a major and quite specific impact on the legislature's redistricting job. 

7.— In light of the foregoing situation, the state strongly urges this Court to 

stay further proceedings in this action,? including the March 15th legislative deadline 

and the remedial hearing keyed to it, until the Supreme Court disposes of the pending 

or impending appeals from this Court's earlier orders. Nothing out of the ordinary is 

being requested through this motion. In fact, it is commonplace in redistricting cases 

for the Supreme Court to grant stays of injunctions of state redistricting plans and 

related further remedial actions or proceedings pending the outcome of appeals on the 

basic liability question. See Wetherell v. DeGrandy, 113 S.Ct. 1 (1992); Voinovich v. Quilter, 

112 S.Ct. 1663 (1992); Growe v. Emison, 112 S.Ct. 1461 (1992). 

  

2 The fee aspects of this action are outside the intended purview of this motion, although they are the 
subject of a pending stay motion filed by the United States. The state fully a the United States’s 
efforts in that motion.  



  

® - ® 
8. This routine practice-of granting stays in redistricting cases has been 

followed in the more recent spate of Shaw-type appeals. In the only two other Shaw- 

ope cases in which stays have been sought, the Supreme Court has granted them. See 

Miller v." Johnson, 115 S.Ct. 36 (1994); Louisiana v. Hays, 115 S.Ct. 31 (1994). Precisely the 

same kind of stay is sought from this Court as was entered by the Supreme Court in 

those two cases, and the proposed order accompanying the motion is patterned after the 

Supreme Court’s order in those two cases. Granting the stay at this level and at this 

time will accomplish two purposes without working any harm to the parties. It will 

relieve the parties of the effort and expense of seeking a stay from the Supreme Court 

which, given recent history in nearly identical circumstances, is virtually certain to be 

granted, and it will put the Texas legislature on notice well in advance of the convening 

of its next regular session that other urgent matters of public policy may take 

precedence for the time being over congressional redistricting. 

9, The state's attorney of record in this case has conferred by telephone with 

the attorneys of record for the three other sets of defendant-intervenors, and all 

indicated that they do not oppose the relief sought in this motion. Two telephone calls 

over the last two days to the attorney of record for the plaintiffs have not yet yielded an 

answer from him about his clients’ position on this motion. 

 



Respectfully submitted, 

  

DAN MORALES 
- : Attorney General of Texas 

JORGE VEGA 
First Assistant Attorney General 

  

   
NJ 

  

A HICKS 

State Solicitor 

USDC ID No. 9490 

P. O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 

(512) 463-2085 
FAX: (512) 463-2063 

ATTORNEYS FOR STATE DEFENDANTS 

CERTIFICATE OF SERVICE 

I certify that I forwarded a copy of the foregoing document by overnight mail to 
each of the following on this 16th day of November, 1994: Paul Loy Hurd, P.O. Box 
2190, 1101 Royal Avenue, Monroe, Louisiana 71207; Gaye L. Hume, Voting Section, 
Civil Rights Division, Department of Justice, P.O. Box 66128, Washington, D.C. 20035- 
6128; Penda D. Hair, NAACP Legal Defense & Educational Fund, Inc., 1275 K Street, 
N.W., Suite 301, Washington, D.C. 20005; and Carmen Rumbaut, MALDEF, 140 E. 

Houston, Suite 300, San Antonio, Texas 78205. 

lear fil 
4 

IN 
  

Renea Hicks 

 



Pr PE 

% ATTACHMENT B » | 2% 

  

  

RT IN THE UNITED STATES DISTRICT CQURRK, U.S. DISTRICT AS 
FOR THE SOUTHERN DISTRICT OF TEE@®STHERN PIs aie 

HOUSTON DIVISION SB 
- : | : EN. WILBY, CLERK AL VERA, BILL CALHOUN, §. BY DEPUTY we 

EDWARD CHEN, PAULINE. ORCUTT, § LALA 
EDWARD BLUM, KENNETH POWERS, § cl 
and BARBARA L. THOMAS § - 

§ . > 1 

§ CIVIL ACTION NO. H-94-0277 
Plaintiffs, §_ : 

v. § 
§ 

: § A aS pri COURT 
ANN RICHARDS, in her official § BOE OF EAS 
capacity as Governor of the & 
State of Texas, et. al. : NOV 21 1994 cial 

§ Defendants. 
T 

efendants Michael N. Milby, Clerk 
Before JONES, Circuit Judge, HITTNER, District Judge, ang —-- HARMON, District Judge. : 

YY En 

Appeals to the United States Supreme Court filed by the defendants 

Ann Richard, et oli Having considered the motion, submissions, and. 

applicable law, the Court determines that the: motion should be 

denied. 3 o : - -— 

Therefore, the Court hereby 

ORDERS that the Motion for Stay. Pending Appeals is DENIED. 

SIGNED at Houston, Texas, on this the 2! day of November, 
1994. : — = 

DAVID HITTNER 
  

| | United States District Judge 8 AE 7 
nS NRA a