Is There A Jurisdictional Problem with A Bail-In Request in Texas?

Michael Ellement emails:

I enjoyed your post today on General Holder’s comments regarding a bail in of Texas.  I am curious though on your thoughts about the court’s jurisdiction in the case, and the possibility of the bail in. Section 3 states that the District Court can “retain jurisdiction” after finding a violation of the fourteenth or fifteenth amendments. Perhaps I have not followed the Texas litigation closely enough, but at least in regards to the Voter ID law I only recall the court reaching the preclearance question. In order for the bail-in mechanism to apply, it would seem that the Texas litigation would have to begin anew, with litigants proving a constitutional violation, and then the court retaining jurisdiction after a specific finding on the constitutional question. Holder’s comments, to me, read as a somewhat backwards looking view of Section 3 — since Texas failed preclearance in the past, it is appropriate for the court to now impose the bail-in procedure. That view does not fit with the “retain jurisdiction” language of the statute, which would only allow a bail-in after the constitutional challenge has been litigated. In other words, there is no such thing as a bail-in suit standing alone. Instead, bail-in only works as a remedy following a constitutional violation. That seems premature in Texas’s case, since a constitutional challenge has not been fully litigated. But, perhaps I am missing something and you can correct me.

I am no expert on Section 3 (though I guess we will all quickly get up to speed on it) and on its jurisdictional niceties.  So I’m not sure yet on which court this is appropriate or what needs to be final. The findings of intentional discrimination came in one of the Texas redistricting cases. Here’s what I wrote about those findings at the time:

3. Most striking substantively about the ruling is that although the judges differ a bit on a technical point about what counts as a “crossover” district for purposes of retrogression, they agree unanimously about Texas discriminatory intent when it comes to the congressional redistricting.  This part of the ruling seemed especially compelling:

There is no direct evidence that the enacted plan was motivated by discriminatory purpose; no emails, letters, or testimony about conversations between those members involved in congressional redistricting disclose such an intent. Cf. Diaz v. Kraft Foods Global, Inc., 653 F.3d 582, 587 (7th Cir. 2011) (“Direct evidence is something close to an explicit admission . . . that a particular decision was motivated by discrimination; this type of evidence is rare, but it ‘uniquely reveals’ the . . . intent to discriminate.” (quoting Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712, 720 (7th Cir. 2005))). Thus, we must assess the circumstances surrounding the drawing of the new maps. Our analysis follows the Supreme Court’s decision in Arlington Heights, which, as discussed in more detail above, identifies five “subjects of proper inquiry in determining whether racially discriminatory intent existed”: (1) discriminatory impact, (2) historical background, (3) sequence of events leading up to the decision, (4) procedural or substantive deviations from the normal decisionmaking process, and (5) contemporaneous viewpoints expressed by the decisionmakers. Arlington Heights, 429 U.S. at 266-68.
As we have already noted, CDs 9, 18, and 30 are the only Black ability districts in the benchmark and enacted plans. CD 9 is located south of Houston and incorporates parts of Harris and Fort Bend Counties, CD 18 is located within Houston, and CD 30 is within Dallas. The Texas legislature proposed substantial changes to these districts even though the 2010 Census data shows the population in each was already close to the ideal size.30 We have already determined that these changes are not retrogressive, but they raise serious concerns about what motivated the Congressional Plan.
Congressman Al Green, who represents CD 9, testified that “substantial surgery” was done to his district that could not have happened by accident. The Medical Center, Astrodome, rail line, and Houston Baptist University — the “economic engines” of the district — were all removed in the enacted plan. Trial Tr. 124:6-20, Jan. 20, 2012 AM; see also Defs.’ Ex. 721, Pre-Filed Test. of Congressman Alexander Green 3-4. The enacted plan also removed from CD 9 the area where Representative Green had established his district office. Trial Tr. 124:16, Jan. 20, 2012 AM. Likewise, Congresswoman Sheila Jackson Lee, who represents CD 18, testified that the plan removed from her district key economic generators as well as her district office. Id. at 13:13-14:5, Jan. 23, 2012 PM. Congresswoman Eddie Bernice Johnson of CD 30 also testified that the plan removed the American Center (home of the Dallas Mavericks), the arts district, her district office, and her home from CD 30. Id. at 79:20-81:16, Jan. 18, 2012 PM. The mapdrawers also removed the district office, the Alamo, and the Convention Center (named after the incumbent’s father), from CD 20, a Hispanic ability district. Mem. Opp. Summ. J. Ex. 16, Decl. of Charles A. Gonzalez ¶¶ 3-9, 11, ECF No. 77.
No such surgery was performed on the districts of Anglo incumbents. In fact, every Anglo member of Congress retained his or her district office. Trial Tr. 14:12-15, Jan. 23, 2012 PM. Anglo district boundaries were redrawn to include particular country clubs and, in one case, the school belonging to the incumbent’s grandchildren. See Mem. Opp. Summ. J. Exs. 11, 18-19, ECF No. 77. And Texas never challenged evidence that only minority districts lost their economic centers by showing, for example, that the same types of changes had been made in Anglo districts.
The United States and the Intervenors convincingly argue — and Texas does not dispute — that removing district offices from minority ability districts but not from Anglo districts has a disparate impact on the minority districts. See U.S. Post-Trial Br. 26. District offices help “provide[] a meaningful connection between a member and the people represented.” Defs.’ Ex. 721, Pre-Filed Test. of Congressman Alexander Green 4. Their locations are often well known to constituents, often placed to be easily accessible by freeway and public transportation, and serve as a way for members of Congress to communicate with and provide services to their constituents. See id. We are likewise troubled by the unchallenged evidence that the legislature removed the economic guts from the Black ability districts. Texas does not dispute that part of a member of Congress’s job is to “bring economic generators that will benefit that community,” id. Removing those economic generators harms the district. Id. at 3-4; U.S. Post-Trial Br. 26

The only explanation Texas offers for this pattern is “coincidence.”31 Trial Tr. 95:5-19, Jan. 25, 2012 PM. But if this was coincidence, it was a striking one indeed. It is difficult to believe that pure chance would lead to such results. The State also argues that it “attempted to accommodate unsolicited requests from a bipartisan group of lawmakers,” and that “[w]ithout hearing from the members, the mapdrawers did not know where district offices were located.” Tex. Post-Trial Br. 29. But we find this hard to believe as well. We are confident that the mapdrawers can not only draw maps but read them, and the locations of these district offices were not secret. The improbability of these events alone could well qualify as a “clear pattern, unexplainable on grounds other than race,” Arlington Heights, 429 U.S. at 266, and lead us to infer a discriminatory purpose behind the Congressional Plan.

4. The evidence of discriminatory intent is important not just for the likelihood that the Supreme Court will affirm this decision even if it disagrees on some aspects of the retrogression standard.  It also serves as some evidence which could be used to argue, in the Shelby County case or elsewhere, that covered jurisdictions still discriminate on the basis of race in making voting-related decisions.  (If this was not done to Anglo Democrats, the evidence is even stronger than if it could be explained on the basis of pure partisanship.)  The Court was careful to note that Texas did not challenge the constitutionality of section 5 in this case.  And the Court rejected a number of Texas’s arguments that it should read section 5 narrowly to avoid a constitutional question.  Whether the Supreme Court will agree with the district court on this point is anyone’s guess.  Indeed, this case could be mooted if the Supreme Court strikes down Section 5 (in the Shelby County case or another) before the Court decides this case on the merits.

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