Defendants Reply in Support of their Motion to Dismiss and For Ju 2x

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1 Case 5:11-cv-00788-OLG-JES-XR Document 55 Filed 11/04/11 Page 1 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION § WENDY DAVIS, et al ., § Plaintiffs, CIVIL ACTION NO. § § SA-11-CA-788-OLG-JES-XR v. § [Lead Case] RICK PERRY, ., § et al Defendants. § ____________________________________ § LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC), § DOMINGO GARCIA , § Plaintiffs, § § CIVIL ACTION NO. SA-11-CA-855-OLG-JES-XR v. § [Consolidated Case] § § ., et al RICK PERRY, Defendants. § MISS AND FOR DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION TO DIS JUDGMENT ON THE PLEADINGS Governor, Hope Andrade, in her official Defendants Rick Perry, in his official capacity as xas (collectively, “Defendants”) respectfully capacity as Secretary of State, and the State of Te file this Reply in Support of their Motion to Dismi ss and for Judgment on the Pleadings. Plaintiffs’ Response fails to identify any allegati ons that would suffice to state a claim for 1 intentional discrimination. e Fourteenth Their Section 2 theory creates a conflict with th Amendment and therefore should be avoided. Their r emaining claims have already been rejected d for appeal. And all of Defendants’ requests by this Court or exist merely to preserve the recor 1 y e Davis Plaintiffs are Wendy Davis, Marc Veasey, Ro Plaintiffs are two different plaintiff groups. Th tiffs Dorothy Debose, and Sarah Joyner. The LULAC Plain Brooks, Vicky Bargas, Pat Pangburn, Frances Deleon, are LULAC and Domingo Garcia. T UPPORT OF S EPLY IN R ’ EFENDANTS D 1 AGE P ISMISS AND D O T OTION M HEIR LEADINGS J UDGMENT ON THE P FOR

2 Case 5:11-cv-00788-OLG-JES-XR Document 55 Filed 11/04/11 Page 2 of 17 for relief as to the 2012 elections are barred unde r the doctrine of laches due to Plaintiffs’ g claims should be dismissed: unjustified delay. For these reasons, the followin violation of the Fourteenth and Plaintiffs’ claims of intentional discrimination in (1) ion; Fifteenth Amendments to the United States Constitut (2) es Clause of the Fourteenth Plaintiffs’ claims under the Privileges or Immuniti Amendment; of the Voting Rights Act. Plaintiffs’ claims alleging violations of Section 2 (3) INTRODUCTION ions of intent simply repeat allegations Plaintiffs’ Response underscores that their allegat and See . Arlington Heights Feeney fficient in that the Supreme Court has rejected as legally insu Village of , 442 U.S. 256, 279 (1979); Personnel Administrator of Massachusetts v. Feeney Arlington Heights v. Metro. Hous. Dev. Corp. , 429 U.S. 252, 268 (1977). Indeed, Plaintiffs ey fail to direct the Court to any allegations make no attempt to distinguish these cases. And th nation claim or disturb the presumption of the that would suffice to state an intentional discrimi See Miller v. Johnson , 515 U.S. 900, 915 (1995). Legislature’s good faith in enacting Plan S148. Instead Plaintiffs cite their insufficient allegati ons of “intentional” legislative conduct, allegedly arate impact itself to state their claim. unheeded warnings of disparate impact, and the disp h beyond the pleadings and attach declarations (Response at 7-8). Plaintiffs also improperly reac in an attempt to bolster their pleadings. See Lovelace v. Software Spectrum , 78 F.3d 1015, 1017 (5th Cir. 1996) lure to state a claim, courts (“Normally, in deciding a motion to dismiss for fai complaint and the documents either attached to must limit their inquiry to the facts stated in the or incorporated in the complaint.”) UPPORT OF S EPLY IN R ’ EFENDANTS P AGE 2 ISMISS AND D O T OTION M HEIR T D LEADINGS FOR J P UDGMENT ON THE

3 Case 5:11-cv-00788-OLG-JES-XR Document 55 Filed 11/04/11 Page 3 of 17 Plaintiffs’ declaration evidence and allegations of intent, even if true, cannot cure the legal defects in Plaintiffs’ claims. Warnings that could theoretically put the Legislature on notice that its proposed plans will have a disparate impac t cannot establish discriminatory purpose. The alleged disparate impact must be the cause, rather than the mere consequence, of the See Feeney , 442 U.S. at 279. Legislature’s decision to enact the plans. oalition of voters from different minority Plaintiffs’ Section 2 claims are viable only if a c racial and ethnic groups can state a claim under Se ction 2. The Supreme Court has rejected similar “crossover” and “influence” claims in Bartlett v. Strickland , 129 S. Ct. 1231, 1243 (2009), and er Section 2 , 548 U.S. 399, 486 (2006). A coalition theory und LULAC v. Perry LULAC v. Perry and cannot survive the Court’s Bartlett v. Strickland decisions because 2 tional infirmity: and “coalition” claims all share the same constitu “crossover,” “influence,” race-based decision-making to advance political int erests. Applying Section 2 to require race- based decisions presumptively triggers strict scrut iny. See Miller v. Johnson , 515 U.S. 900, 920 nority groups from discrimination, it can (1995). If Section 2 merely protects individual mi theoretically survive strict scrutiny. ting the (“There is a significant state interest in eradica Id. effects of past racial discrimination.”) (internal citations and quotation marks omitted). If it cy choices, Section 2 will fail strict scrutiny instead protects political alliances or shared poli because the protection of political alliances and s hared policy choices is not a compelling state interest, and a race-based remedy is not narrowly t ailored to achieve that end even if it were. Plaintiffs concede that they bring their Privileges and Immunities claims simply to Response at 15. And they offer no reason for this See preserve the record for appeal. Court to 2 ities “can influence, rather than alter, election r An influence district is a district in which minor esults.” Bartlett in which ions omitted). A crossover district is a district , 129 S. Ct. at 1242 (internal citations and quotat , [are] large “minority voters make up less than a majority of th e voting-age population, [but] at least potentially and who cross h help from voters who are members of the majority enough to elect the candidate of [their] choice wit Id. ” over to support the minority’s preferred candidate. ’ D 3 AGE P ISMISS AND D O T OTION M HEIR T UPPORT OF S EPLY IN EFENDANTS R LEADINGS J UDGMENT ON THE P FOR

4 Case 5:11-cv-00788-OLG-JES-XR Document 55 Filed 11/04/11 Page 4 of 17 depart from its recent decision that the Fifteenth Amendment does not contemplate vote dilution claims. Finally, the defense of laches bars Plaintiffs’ cla ims in whole or in part. Plaintiffs’ Response offers no justification for their decision to pursue their Senate claims separately from their Texas House and congressional claims. Though they cite limited resources, they fail to ficiency and conserves their resources. They explain how bringing separate lawsuits increases ef also ask the Court to adopt a per se rule that woul d suspend application of the doctrine of laches yet occurred. This ignores that prejudice can in any redistricting case where elections have not ed election deadlines, and compressed election take many forms, including duplicative trials, miss schedules. ARGUMENT udgment on the Pleadings. I. Legal Standard for Motion to Dismiss and for J The parties agree that Federal Rules 12(b)(6) and 1 2(c) share the same standard for dismissal. , 313 F.3d 305, 313 n.8 (5th ter See Great Plains Trust v. Morgan Stanley Dean Wit nts’ motion a “motion to dismiss” or a Cir. 2002). Thus, whether the Court styles Defenda here are the same. “motion for judgment on the pleadings,” the results Cf. Response at 1 n.1. ld therefore be dismissed. Plaintiffs’ claims fail as a matter of law and shou or Judgment on the Pleadings, “a As explained in Defendants’ Motion to Dismiss and f plaintiff’s obligation to provide the grounds of hi s entitlement to relief requires more than labels elements of the cause of action will not do.” and conclusions, and a formulaic recitation of the rks, and brackets , 550 U.S. 544, 555 (2007) (citations, quotation ma Bell Atl. Corp. v. Twombly 3 For instance, in , the Iqbal omitted); , 129 S. Ct. 1937, 1949 (2009). see also Ashcroft v. Iqbal plaintiff had alleged that then-Attorney General Jo hn Ashcroft and other federal officials had 3 no-set-of-facts test” upon which Plaintiffs rely. Iqbal , 129 S. Ct. at 1944. retired the Twombly “ Conley ’ EFENDANTS 4 AGE P ISMISS AND D O T OTION M HEIR T UPPORT OF S EPLY IN R D FOR J UDGMENT ON THE P LEADINGS

5 Case 5:11-cv-00788-OLG-JES-XR Document 55 Filed 11/04/11 Page 5 of 17 purposefully and invidiously discriminated against him. Iqbal , 129 S. Ct. at 1948. Citing rposeful discrimination requires more Feeney , 442 U.S. at 279, the Supreme Court found that “pu Iqbal consequences.’” than ‘intent as volition or intent as awareness of , 129 S. Ct. at 1948. Thus “to state a claim . . . , respondent must plea d sufficient factual matter to show that petitioners adopted and implemented the detention p olicies at issue not for a neutral, inating on account of race, religion, or national investigative reason but for the purpose of discrim Id. origin.” at 1948-49. oned, and willfully and Plaintiff pleaded that “petitioners ‘knew of, cond Iqbal The tions of confinement ‘as a matter of policy, maliciously agreed to subject [him]’ to harsh condi solely on account of [his] religion, race, and/or n ational origin and for no legitimate penological aded “that Ashcroft was the interest.’” Id. at 1951 (internal citations omitted). He also ple that Mueller was ‘instrumental’ in adopting and ‘principal architect’ of this invidious policy and (internal citations omitted). The Court determine d that the plaintiff’s “bare Id. executing it.” assertions, much like the pleading of conspiracy in , amount to nothing more than a Twombly ‘formulaic recitation of the elements’ of a constit utional discrimination claim, namely, that ly ‘in spite of,’ its adverse effects upon an petitioners adopted a policy ‘because of,’ not mere identifiable group.’” Id. (internal citations omitted). These allegations therefore failed to oss the line from conceivable to plausible.” “nudge [his] claims of invidious discrimination acr Id. (internal citations and quotation marks omitted). For the most part, Plaintiffs’ intentional discrim ination allegations merely repeat formulaic recitations of alleged legislative “inten Response at 7 (quoting See t” or “purpose.” with the purpose ” and nate plan was drawn allegations from the Davis Complaint that “[the] se UPPORT OF S EPLY IN R EFENDANTS ’ D 5 AGE P ISMISS AND D O T OTION M HEIR T J UDGMENT ON THE P LEADINGS FOR

6 Case 5:11-cv-00788-OLG-JES-XR Document 55 Filed 11/04/11 Page 6 of 17 that there was “ intentional fracturing”). Their remaining claims advance leg al theories that are aw. unsupported and should be rejected as a matter of l imination. Plaintiffs Cannot Establish Intentional Discr II. Plaintiffs confuse the concepts of notice pleading and evidentiary relevance with legal laintiffs’ Complaints provides adequate notice sufficiency to state a claim. The mere fact that P of their intentional discrimination claims does not make these claims sufficient to state a claim compare ED F . 588 F.3d 186, 192-93 (4th Cir. 2009); R. for relief. , See Francis v. Giacomelli true, could IV . P. 8 C at 12(b)(6); see also Response at 8. Similarly, alleging facts that, if with id. factor more or less probable does not make these make the existence of an Arlington Heights 429 U.S. at 265 (“Disproportionate , See Arlington Heights allegations sufficient to state a claim. impact is not irrelevant, but it is not the sole to uchstone of an invidious racial discrimination.); ED VID R. E see also . 401; ED F Response at 7-9. Here, . R. C IV . P. 12(b)(6) with . F compare Plaintiffs have not alleged facts that would make a n inference of discriminatory purpose more a claim. likely than not and they therefore have not stated 4 and The Supreme Court rarely applies the Arlington Heights factors to Section 2 cases, Plaintiffs have not directed the Court to any decis Response at 6 (citing the See ion that does so. , 520 U.S. 471, 488 (1997)). Section 5 case of Reno v. Bossier Parish Sch. Bd. Arlington Heights he facts that Plaintiffs have pleaded parallel nevertheless provides a useful comparison because t to prove intentional discrimination in the facts that the Supreme Court found insufficient See Arlington Heights Arlington Heights . Arlington Heights involved a , 429 U.S. at 270-71. at 255- Id. -family use into multi-family use. zoning application to convert land zoned for single at issue would have introduced multi-family 60. The multi-family project proposed for the land 4 See, e.g., Bush v. Vera , 509 U.S. 630, 643-44 (1993) (citing Shaw v. Reno , 517 U.S. 952, 1012 n.9 (1996); Arlington Heights factors). but not applying the Arlington Heights 6 AGE P ISMISS AND D O T OTION M HEIR T UPPORT OF S EPLY IN R ’ EFENDANTS D LEADINGS J UDGMENT ON THE P FOR

7 Case 5:11-cv-00788-OLG-JES-XR Document 55 Filed 11/04/11 Page 7 of 17 housing to a predominantly single-family community. See id. At three public hearings, “Some members of the public spoke both in favor and again st the rezoning application. See id. , addressed what was referred to as the of the comments, both from opponents and supporters ‘social issue’—the desirability or undesirability o f introducing at this location in Arlington hat would probably be racially integrated.” Heights low- and moderate-income housing, housing t at 257-58. Other comments addressed the proposal’ s potential effect on property values and Id. multi-family developments surrounded by the city’s stated policy preference that disfavored Id. at 258. The city ultimately rejected the proposed Id. single family housing. zoning change. at 258-60. The district court found that Plaintiff s had not carried their burden of proving The Supreme Court reversed the Id. The court of appeals reversed. Id. discriminatory intent. court of appeals and found the record insufficient to establish a claim of Arlington Heights Id. purposeful discrimination. rportedly support their allegations of In identifying portions of their Complaints that pu intent, Plaintiffs repeatedly emphasize the warning s and complaints of minority voters and their arnings shed light on three Response at 7-8. According to Plaintiffs, these w representatives. See Arlington Heights d up to the enactment of Plan factors: the “specific sequence of events” that le S148, “departures from the normal procedural sequen ce,” and “the legislative and administrative history.” Id. This reasoning ignores the factual predicate of Arlington Heights . There, the city plan commission likewise knew that denial of the re zoning application could disproportionately , affect minorities. See Arlington Heights 429 U.S. at 257-58. This “social issue” was at the The commission nevertheless decided forefront of the city plan commission’s deliberatio Id. ns. against endorsing the zoning change and the Supreme Id. Court found this denial constitutional. establishes that the failure to heed “warnings” of legislators and Arlington Heights at 270-71. ’ D 7 AGE P ISMISS AND D O T OTION M HEIR T UPPORT OF S EPLY IN R EFENDANTS LEADINGS J UDGMENT ON THE P FOR

8 Case 5:11-cv-00788-OLG-JES-XR Document 55 Filed 11/04/11 Page 8 of 17 voters who will reap a political advantage if the L egislature adopts their policy judgments cannot suffice to establish intent. Otherwise, a politica l party holding a minority of seats in the Legislature could dictate political outcomes by loa ding the legislative record with “warnings” of a potential disparate impact. n Anglo Democrat does not show that The fact that Senate District 10 recently elected a s an inference of intent. the “historical background” of the decision support Response at 7. See their Response, Defendants never claimed— Notwithstanding Plaintiffs’ contrary assertions in t 10 was a “naturally occurring majority- and Plaintiffs have not alleged—that Senate Distric minority district in 2001.” Response at 7. Rather , Plaintiffs allege that “[w]hen Senate District s 56.6 percent Anglo, 16.7 percent African 10 was drawn in the 2001 redistricting cycle, it wa nt ¶ 32. In other words, Senate District 10 American and 22.9 percent Hispanic.” Davis Complai was at most a potential crossover district. Wendy Davis as the preferred Although Plaintiffs identify District 10 incumbent candidate of minority voters, they fail to allege a ny facts that would disentangle partisan interests l discrimination is prohibited. Partisan from racial discrimination. Only intentional racia measures do not constitute intentional discriminati on merely because they have a foreseeable impact on certain racial or ethnic groups. See Hunt v. Cromartie , 526 U.S. 541, 551 (1999) iction may engage in constitutional political (“Our prior decisions have made clear that a jurisd gerrymandering, even if it so happens that the most loyal Democrats happen to be black Democrats and even if the State were conscious of that fact.”); Bush v. Vera , 517 U.S. at 968 (“If district lines merely correlate with race beca use they are drawn on the basis of political affiliation, which correlates with race, there is n o racial classification to justify, just as racial disproportions in the level of prosecutions for a p articular crime may be unobjectionable if they T OTION M HEIR T UPPORT OF S EPLY IN EFENDANTS R ’ 8 P AGE ISMISS AND D O D LEADINGS FOR J P UDGMENT ON THE

9 Case 5:11-cv-00788-OLG-JES-XR Document 55 Filed 11/04/11 Page 9 of 17 merely reflect racial disproportions in the commiss ion of that crime.”). This history of one Democrat’s electoral success in Senate District 10, followed by a reconfiguration of the district oes not show that intentional discrimination on so that it may no longer be a crossover district, d t allegations to support the requisite causal account of race caused the reconfiguration. Withou See Feeney showing, Plaintiffs’ intentional discrimination cla ims fail. , 442 U.S. at 279. Senate District 10 “bears more heavily Plaintiffs’ allegation that the reconfiguration of isparate impact. Response at 6-7. According on” racial minorities than Anglos shows, at most, d “made it clear that Washington v. Davis , the Supreme Court’s decision in to Arlington Heights olely because it results in a racially official action will not be held unconstitutional s 429 U.S. at 264-65 (citing , Washington v. Davis , Arlington Heights disproportionate impact.” also involved “warnings” of disparate impact, but Arlington Heights 426 U. S. 229 (1976)). urpose even when combined with disparate these warnings could not establish discriminatory p at 270-71. Id. impact. dismantling” an existing district, Finally, Plaintiffs allege that by “fracturing and Defendants departed from “normal factors considered .” Response at 8. However, the Complaints allege no facts show what “normal” facto rs the Legislature considers. Without a baseline for comparison, Plaintiffs cannot state a plausible claim that a “departure” from the baseline has occurred. Plaintiffs’ improper attemp t to reach beyond the pleadings and cite y legislative process suffers a similar defect. legislators’ declarations as proof of discriminator Neither Plaintiffs’ Complaints nor the improperly c ited declarations establish the “normal” lation. Allegations of a hastened political sequence of events for enacting redistricting legis See Moore v. process do little to inform the intentional discrim ination inquiry in any event. hat the Legislature , 293 F.3d 352, 370 (6th Cir. 2002) (“Allegations t Detroit Sch. Reform Bd. S EPLY IN R ’ EFENDANTS 9 AGE ISMISS AND D O P T OTION M HEIR T UPPORT OF D LEADINGS FOR J P UDGMENT ON THE

10 Case 5:11-cv-00788-OLG-JES-XR Document 55 Filed 11/04/11 Page 10 of 17 acted with haste and did not engage in extensive fa ct-finding might be a legitimate and even a valid critique of its behavior, but it does not lea d to an inference of racial discrimination.”). If Plaintiffs had a good faith basis for doing so, they could have alleged district boundaries inexplicable on grounds other than race; disparities in the process available to plan performance optimized in Plan S148 at the opponents based on the race of the opponent; racial evidence of reliance on racial data as expense of political performance; or circumstantial opposed to political data. Plaintiffs have alleged none of these facts because they have no good faith basis for doing so. Instead, Plaintiffs have alleged that Defendants knew Plan S148 would have a disparate impact on minorities, Defendants e nacted Plan S148 anyway, and then the foreseen disparate impact occurred. Even if proven , these facts do not support the inference that alleged discriminatory effect on minority Defendants enacted Plan S148 because of Plan S148’s , 442 U.S. at 279. Plaintiffs have therefore faile voters. See Feeney d to state “plausible claims” 5 , 129 S.Ct. at 1949. Iqbal of intentional discrimination, and their claims sho uld be dismissed. III. Section 2 of the Voting Rights Act Does Not Recognize or Protect Coalition Districts. 6 Plaintiffs rely exclusively on Campos v. City of Baytown , 840 F.2d 1240 (5th Cir. 1988), ion of coalition districts. But Plaintiffs have to support their theory that § 2 requires the creat Campos failed to reconcile the viability of their reading with the Supreme Court’s admonition that “[n]othing in section 2 grants special protect ion to a minority group’s right to form political Bartlett te in their Response any , 129 S.Ct. at 1243. They conspicuously fail to ci coalitions.” s than 21 years old, much less any authorities that authorities for their coalition theory that are les 5 claim of invidious, intentional discrimination agai nst the Since 1973 no Plaintiff has successfully lodged a hing to suggest that See State of Texas. White v. Regester , 412 U.S. 755 (1973). Plaintiffs have offered not Defendants’ distant and unfortunate history of disc rimination has recently reemerged after a 38-year h iatus. 6 Plaintiffs also cite , 906 F.2d 1042, 1046 (5th Cir. 1990), Westwego Citizens for Better Gov’t v. Westwego these cases found that a coalition of minority , 876 F.2d 448, 452 (5th Cir. 1989), but neither of Brewer v. Ham and voters had proved a Section 2 violation. ’ D 10 AGE P ISMISS AND D O T OTION M HEIR T UPPORT OF S EPLY IN R EFENDANTS LEADINGS J UDGMENT ON THE P FOR

11 Case 5:11-cv-00788-OLG-JES-XR Document 55 Filed 11/04/11 Page 11 of 17 postdate Bartlett . See Response at 11-15. They likewise fail to explain how coalition districts can survive the Supreme Court’s recent summary affi . 308 F. Rodriguez v. Pataki rmance of , 543 U.S. 997 (2004) (explaining the , aff’d Supp. 2d 346, 374-75 (S.D.N.Y.) (three-judge court) pitfalls of a coalition theory). Indeed, the Supre me Court’s summary affirmance of an opinion to reject coalition rejecting influence districts caused the district c ourt in Session v. Perry . , 298 F. Supp. 2d 451, 481 (E.D. Tex. See Session v. Perry Campos districts notwithstanding , 263 F. Supp. 2d 1100, 1104 (S.D. Ohio), 2004) (citing Parker v. Ohio aff’d , 540 U.S. 1013 (2003)). Most importantly, Plaintiffs’ Response fails to e can Campos xplain how their reading of Cf. a “predominant” factor in redistricting. survive strict scrutiny or avoid elevating race to LULAC v. Perry , 515 U.S. at Miller v. Johnson , 548 U.S. at 486; 129 S. Ct. at 1247; Bartlett, ions of minorities “would unnecessarily infuse 920. A rule that requires patching together coalit 129 S. Ct. at 1247 (internal citations and Bartlett, race into virtually every redistricting.” quotations omitted). This is especially true in a state like Texas where no racial group itutionality of section 2, courts should adopt commands a majority. Rather than imperil the const See id. (noting that the “canon of a reading that ensures the statute’s continued viab ility. constitutional avoidance is a tool for choosing bet ween competing plausible interpretations of a on that Congress did not intend the alternative statutory text, resting on the reasonable presumpti which raises serious constitutional doubts”) (inter nal citations and quotation marks omitted). section 2 and the Fourteenth Amendment Here, the reading that avoids any conflict between requires rejecting Plaintiffs’ coalition theory. T decision never examined this Campos he me Court , 840 F.2d at 1244. It also predates several Supre Campos constitutional dimension. authorities that clarify the interplay between the Voting Rights Act and the Fourteenth ’ D 11 AGE P ISMISS AND D O T OTION M HEIR T UPPORT OF S EPLY IN R EFENDANTS LEADINGS J UDGMENT ON THE P FOR

12 Case 5:11-cv-00788-OLG-JES-XR Document 55 Filed 11/04/11 Page 12 of 17 Amendment. See, e.g. , Bartlett, 129 S. Ct. at 1247; LULAC v. Perry , 548 U.S. at 486; Miller v. , 515 U.S. at 920; Johnson , 509 U.S. Shaw v. Reno , 517 U.S. 952, 1012 n.9 (1996); Bush v. Vera is Campos Plaintiffs’ reliance on 630, 653-54 (1993). In light of these authorities, 7 constitutionally untenable, and Plaintiffs’ claims should therefore be dismissed. IV. Plaintiffs’ Privileges or Immunities Claims F ail as a Matter of Law. Plaintiffs admit that their Privileges or Immunitie s Clause challenge exists merely to At bottom, their claims rely on reading Justice preserve the record for appeal. Response at 15. McDonald v. City of Chicago, Ill Thomas’s concurrence and dissent in ., 130 S. Ct. 3020, 3059- , 321 U.S. 1, 7 (1944). Justice Thomas’s Snowden v. Hughes 88 (2010), as a silent reversal of not resolve the distinction central to this opinion obviously had no reversing effect and does , case: the state-created right to vote as opposed to the federally created right vote. See Snowden 321 U.S. at 7. “The right to vote for state office rs or initiatives ‘is a right or privilege of state citizenship, not of national citizenship which alon e is protected by the Privileges or Immunities , 321 clause.’” , 618 F. Supp. 2d 661, 688 (S.D. Tex. 2009) (quotin g Snowden Broyles v. Texas otects only rights of federal citizenship. U.S. at 7). The Privileges or Immunities Clause pr See ies claim, which seeks protection of a Snowden , 321 U.S. at 7. Plaintiffs’ Privileges or Immunit fails as a matter of law. state right to vote for a state official, therefore ot Cognizable. Fifteenth Amendment Vote Dilution Claims are n V. tter of law because vote dilution is Plaintiffs’ Fifteenth Amendment claims fail as a ma not cognizable under the Fifteenth Amendment. , 227 F.3d 504, 519 (5th Cir. Prejean v. Foster 7 Plaintiff’s Complaints make plain that Senate Dist y a rict 10 was, at best, a cross-over district and onl “coalition” if measured by total population as oppo Complaint ¶¶ sed to total citizen voting age population. Davis the proper measure for a section 2 case. 32-42 (Doc. 1). Citizen voting age population is See Campos v. City of ntiffs’ at the pleading stage, this Court must accept Plai , 113 F.3d 544, 548 (5th Cir. 1997). Nevertheless, Houston population leged that two majority-minority citizen voting age factual allegations as true, and Plaintiffs have al See rrant counties. coalition districts could be drawn in Dallas and Ta Davis Complaint ¶ 42 (Doc. 1). O T OTION M HEIR T UPPORT OF S EPLY IN R ’ EFENDANTS D 12 AGE P ISMISS AND D LEADINGS J UDGMENT ON THE P FOR

13 Case 5:11-cv-00788-OLG-JES-XR Document 55 Filed 11/04/11 Page 13 of 17 2000) (“[T]he Supreme Court has rejected applicatio n of the Fifteenth Amendment to vote dilution causes of action.”) (citing , 528 U.S. 320, 334 n.3 Reno v. Bossier Parish Sch. Bd. (2000)). Plaintiffs attempt to escape this result by arguing that they have stated a claim for See Response at 10. Plaintiffs’ Response misses the p vote dilution. oint: vote intentional enth Amendment, whether or not intentional dilution is not a cognizable injury under the Fifte See City of Mobile v. Bolden conduct caused the alleged vote dilution. , 446 U.S. 55, 65 (1980) fully discriminatory denial or abridgment (plurality) (“That Amendment prohibits only purpose race, color, or previous condition of by government of the freedom to vote ‘on account of entional conduct could not salvage the Fifteenth servitude.’”). For this reason, allegations of int Order, Amendment claims in , Civil Action No. 5:11-cv- Perez, et al. v. Texas, et al. See . Perez rt with no reason to change course now. 00360 (Doc. 275). Plaintiffs have supplied the Cou ricting plans will deny or abridge any Plaintiffs have not alleged that the State’s redist y were passed for the purpose of denying the person’s right to cast a ballot, much less that the ifteenth Amendment claims should therefore be right to do so on the basis of race. Plaintiffs’ F dismissed. Plaintiffs’ Delay Calls for the Doctrine of La VI. ches to Bar Relief. , 797 F. Supp. 547 (N.D. Tex. 1992), Lopez v. Hale County Plaintiffs’ cramped reading of orms. Plaintiffs’ reading also ignores that the ignores that the prejudice in that case took many f Lopez prejudice in several respects. Like , Plaintiffs’ delays Lopez prejudice here resembles the e hardship to the State of Texas, its electoral will cause missed election deadlines and unavoidabl r office, and voters. Although Plaintiffs’ delay officials, local electoral officials, candidates fo Plaintiffs’ claims survive this Motion and will not require duplicative elections, it will, if summary judgment, require a duplicative trial. T UPPORT OF S EPLY IN R EFENDANTS ’ 13 P ISMISS AND D AGE O T OTION M HEIR D LEADINGS FOR J P UDGMENT ON THE

14 Case 5:11-cv-00788-OLG-JES-XR Document 55 Filed 11/04/11 Page 14 of 17 Plaintiffs’ delays in bringing their Plan S148 clai ms have already unnecessarily Perez er applied to the preclearance and consumed scarce resources that would have been bett order shows discovery closing on October proceedings. Although the preclearance scheduling ert reports of the defendant-intervenors in that 25, 2011, this order predates the late-arriving exp 1303 (Doc. 51). The State has not had the case. Scheduling Order, Civil Action No. 1:11-cv-0 reports and may very well choose to do so if opportunity to depose these experts regarding their l discovery in this matter and the preclearance the preclearance matter proceeds to trial. Paralle oreover, preparations for a trial in November proceeding is therefore a very real possibility. M Perez rce time away from the will require the State and this Court to divert sca case. . The Department of Justice did not Defendants are not to blame for Plaintiffs’ delays Court for the District of Columbia grants the object to Plan S148. If the United States District likely have been settled by mid- State summary judgment on Plan S148, that map would could remain in flux well into December or November. Now, due to Plaintiffs’ delays, that map January, to the detriment of numerous stakeholders. Plaintiffs’ justification for this delay rests on two implausible explanations. Plaintiffs first explain that they needed to act in light of DOJ’s refusal to do so, but this explanation ignores that Plaintiffs have intervened in the preclearance etrogressed, they could have proceeding. See Response at 16. If they believed that Plan S148 r ion. Plaintiffs’ second explanation, which objected in that proceeding with or without DOJ act Conducting two trials will not conserve cites their scarce resources, appears pretextual. resources. that tactical advantage motivated them to Plaintiffs’ explanations reinforce the conclusion and as an alternative to dismissal under Rules withhold their claims. Under these circumstances, tiffs’ complaint without prejudice and allow 12(b)(6) and 12(c), this Court should dismiss Plain M HEIR T UPPORT OF S EPLY IN R ’ EFENDANTS P AGE 14 O ISMISS AND D T OTION D LEADINGS FOR J P UDGMENT ON THE

15 Case 5:11-cv-00788-OLG-JES-XR Document 55 Filed 11/04/11 Page 15 of 17 Plaintiffs’ Plan S148 objections prevent the preclearance proceeding to run its course. If nfigure S148 as necessary to address any preclearance, the State or this Court can then reco order an interim plan. If, on the other hand, defects identified in preclearance proceedings and reurge their other challenges to Plan S148. the State obtains preclearance, Plaintiffs can then 012 elections. Rather, preparations for and Equity entitles Plaintiffs to no relief as to the 2 ld continue undisturbed in light of Plaintiffs’ litigation involving elections under Plan S148 shou inexcusable and prejudicial delays. PRAYER For the foregoing reasons, Defendants respectfully request that the Court dismiss the dgment on the Pleadings as to the Davis LULAC Plaintiffs’ Complaint and grant Defendants Ju ntiffs: Complaint for the following claims asserted by Plai (1) violation of the Fourteenth and Plaintiffs’ claims of intentional discrimination in ion; Fifteenth Amendments to the United States Constitut (2) Plaintiffs’ claims under the Privileges or Immuniti es Clause of the Fourteenth Amendment; Plaintiffs’ claims alleging violations of Section 2 (3) of the Voting Rights Act. rt dismiss the complaints of the Davis In the alternative, Defendants request that the Cou ce pending a decision by the United States Plaintiffs and the LULAC Plaintiffs without prejudi learance. District Court for the District of Columbia on prec ISMISS AND P AGE 15 T UPPORT OF S EPLY IN R ’ EFENDANTS HEIR OTION T M O D D LEADINGS FOR J P UDGMENT ON THE

16 Case 5:11-cv-00788-OLG-JES-XR Document 55 Filed 11/04/11 Page 16 of 17 Dated: November 4, 2011 Respectfully Submitted, GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General BILL COBB Deputy Attorney General for Civil Litigation DAVID C. MATTAX Director of Defense Litigation J. REED CLAY, JR. Special Assistant and Senior Counsel to the Attorney General /s/ David J. Schenck DAVID SCHENCK Deputy Attorney General for Legal Counsel Texas Bar No. 17736870 ANGELA COLMENERO Assistant Attorney General Texas Bar No. 24048399 MATTHEW H. FREDERICK Special Counsel to the Attorney General Texas Bar No. 24040931 ANA MARIE JORDAN Assistant Attorney General Texas Bar No. 00790748 BRUCE D. COHEN Special Assistant to the Attorney General Texas Bar No. 24014866 P.O. Box 12548, Capitol Station Austin, TX 78711-2548 (512) 936-1342 (512) 936-0545 (fax) ATTORNEYS FOR THE STATE OF TEXAS, RICK PERRY, AND HOPE ANDRADE M HEIR T UPPORT OF S EPLY IN R ’ EFENDANTS P AGE 16 O T D ISMISS AND OTION D LEADINGS FOR J P UDGMENT ON THE

17 Case 5:11-cv-00788-OLG-JES-XR Document 55 Filed 11/04/11 Page 17 of 17 CERTIFICATE OF SERVICE is filing was sent via the Court’s electronic I hereby certify that a true and correct copy of th ord on November 4, 2011: notification system to the following counsel of rec David Richards J. Gerald Hebert Richards, Rodriguez and Skeith Attorney at Law 816 Congress Avenue, Suite 1200 191 Somervelle Street, #405 Austin, TX 78701 Alexandria, VA 22304 [email protected] [email protected] Attorney for Davis Plaintiffs Attorney for Davis Plaintiffs Donna García Davidson Eric Opiela Attorney at Law Attorney at Law P.O. Box 12131 1122 Colorado, Suite 2301 Austin, TX 78711 Austin, TX 78701 [email protected] [email protected] Attorney for Defendant Steve Munisteri Attorney for Defendant Steve Munisteri Luis Vera Chad Dunn 1325 Riverview Towers Brazil & Dunn 111 Soledad 4201 FM 160 West, Suite 530 San Antonio, Texas 78205 Houston, Texas 77068 [email protected] [email protected] Attorney for Defendant Boyd Richie Attorney for LULAC Plaintiffs /s/ David J. Schenck DAVID J. SCHENCK Deputy Attorney General for Legal Counsel P AGE 17 EFENDANTS OTION O M HEIR T T UPPORT OF S EPLY IN R ’ D ISMISS AND D LEADINGS FOR J P UDGMENT ON THE

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