Case 5:11-cv OLG-JES-XR Document 34 Filed 10/19/11 Page 1 of 6

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1 Case 5:11-cv OLG-JES-XR Document 34 Filed 10/19/11 Page 1 of 6 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION WENDY DAVIS; MARC VEASEY; ) ROY BROOKS; VICKY BARGAS; ) PAT PANGBURN; FRANCES DELEON; ) DOROTHY DEBOSE; and SARAH ) JOYNER, ) ) Plaintiffs, ) ) v. ) ) CIVIL ACTION NO. ) SA-1 I -CA-788-OLG-JES-XR RICK PERRY, in his official capacity ) as Governor of the State of Texas; ) HOPE ANDRADE, in her official ) capacity as Secretary of State of the ) State of Texas; BOYD RICHIE, ) in his official capacity as Chair of the ) Texas Democratic Party; and ) STEVE MUNISTERI, in his official ) capacity as Chair of the Republican ) Party of Texas, ) ) Defendants. ) ) PLAINTIFFS ADVISORY ON LACHES On October 13, 2011, this Court issued an Order directing the parties to file a brief advisory to the Court within seven (7) days from the date below to explain whether laches would apply under the facts in this case. Lopez v. Hale County, 797 F. Supp. 547, 550 (N.D. Tex. 1992). Plaintiffs respectfully submit this Advisory in response to that Order. The Sequence of Events Leading Up To the Filing of This Lawsuit The state senate redistricting plan was finally enacted by the Texas Legislature on May 23, However, Governor Perry waited a nearly a month, until June 17, 2011, to sign the plan 1

2 Case 5:11-cv OLG-JES-XR Document 34 Filed 10/19/11 Page 2 of 6 into law. 2 And state officials waited more than a month, until July 19, 2011, to seek preclearance of the state senate plan. 3 A number of the plaintiffs in this case immediately sought to intervene as defendants in the DC litigation, filing their motion to intervene a mere two days after the complaint was filed. Plaintiffs did so because they wanted to protect their rights and interests under section 5 of the Voting Rights Act. The DC Court promptly granted intervention to the Davis intervenors (some of whom are plaintiffs in this case), over the opposition of the State of Texas. The Davis Intervenors in the DC case anticipated that the United States Department of Justice would oppose preclearance of the state senate plan, the congressional plan, and the State House plan. On September 19, 2011, the United States Department of Justice filed its answer in the DC Court stating that while they would not oppose preclearance of the state senate plan or state board of education plan, they would oppose preclearance of the congressional and state house plan. The Timing and Reasons for Filing This Lawsuit on September 22, 2011 Because the State s proposed senate plan was enacted with a racially discriminatory purpose, and given the retrogressive effect of the state senate plan on the ability of minority voters to participate effectively in the political process, the Davis Plaintiffs here fully expected the Department of Justice to oppose preclearance of the state senate plan. 4 As noted above, the Department of Justice did not oppose preclearance of the state senate plan, however. Plaintiffs here believe that the Department of Justice made that determination because they lacked all the 2 Ibid. 3 Even then, the State of Texas chose to file for judicial preclearance in the U.S. District Court for the District of Columbia rather than seeking the speedy alternative of administrative preclearance from the United States Attorney General. See Morris v. Gressette, 432 U.S. 491, 503 (1977). 4 Though DOJ s answer in the DC Court did not oppose preclearance of the state Senate plan, it is the DC court that will get to make the decision on preclearance. Several Intervenors in the DC case, including some of the plaintiffs here, are opposing preclearance of the state senate plan. No trial has been set in the DC case. The State has moved for summary judgment on the three statewide plans and that motion will be heard November 2,

3 Case 5:11-cv OLG-JES-XR Document 34 Filed 10/19/11 Page 3 of 6 information necessary to make a decision about the racially discriminatory intent and retrogressive effect of the state senate plan. Several of the plaintiffs here continue to press those issues in the DC Court as intervenors and expect to prevail. In any event, Plaintiffs filed this lawsuit on September 22, 2011, just three days after the Department of Justice ( DOJ ) filed its Answer in the DC Court. Plaintiffs did not delay filing this lawsuit, and have been using their limited resources to litigate claims in two other courts to bring about redistricting plans that fully comply with the Constitution and the Voting Rights Act. The doctrine of laches has no application in this case. In the case cited by this Court in its order on laches, Lopez v. Hale County, Tex., 797 F. Supp. 547, (N.D. Tex. 1992), aff d, 506 U.S (1993), the plaintiff waited until after the election was held under the unprecleared plan and then filed suit. The plaintiff did not file his complaint in this matter until April 23, 1992 approximately two weeks after the Attorney General had objected and six weeks after the primary elections had occurred. Lopez, supra, at 548. The court denied any relief to plaintiff finding he failed to advance any reason why he could not have filed suit prior to the election. Id. at 550. The court further held not only that the plaintiff failed to display any due diligence in challenging elections for the unprecleared changes, but that relief would not be in the public interest. Id. 5 The facts in the Lopez case are far different from the circumstances here, where the Davis plaintiffs promptly filed this suit following DOJ s Answer in the DC case and, consistent with the limited resources available to them, have displayed due diligence in pursuing their rights in 5 The Lopez court noted: An election has been held; voters have cast their ballots; candidates have been nominated; the county has expended considerable money and effort in that process. It would be particularly onerous to void that process and start over, unless overriding equitable considerations required it. Id., at

4 Case 5:11-cv OLG-JES-XR Document 34 Filed 10/19/11 Page 4 of 6 multiple courts. Moreover, the State is not prejudiced by the filing of this lawsuit or its timing. No candidate qualifying has occurred, no voters have cast ballots, and no election has been held. While such factors may affect the relief afforded plaintiffs in other Voting Rights Act cases, 6 neither the timing of this case nor the plaintiffs filing of it causes any prejudice to the state defendants. Indeed, because the plaintiffs here and counsel for the state defendants have agreed to use the Perez v. Perry record in this case to avoid any duplication of evidence and to conserve judicial resources, it is estimated that the trial of this redistricting case will take two days at the most, and most likely one day. This Court should have roughly the same opportunity to take the evidence and render a timely decision in this case as exists in the Perez v. Perry consolidated cases. Plaintiffs here have extremely limited resources. Plaintiffs hoped and assumed DOJ would object to the state senate plan, and that the Department of Justice would use its vast resources to oppose preclearance of the state senate map. That would have taken some of the financial and resource burdens off the Davis Intervenors in the DC case. In fact, plaintiffs here used their limited resources to urge DOJ to oppose preclearance of the state senate map, meeting 6 See Henderson v. Graddick, 641 F.Supp. 1192, 1200 (M.D.Ala.1986) (per curiam) (three-judge court) ( laches is not a defense to a Section 5 claim ); Dotson v. City of Indianola, 514 F.Supp. 397 (N.D.Miss.1981) (three-judge court) ( laches is not available for a private action for injunctive relief brought under Section 5 of the Voting Rights Act ), aff'd 456 U.S. 1002, 102 S.Ct. 2287, 73 L.Ed.2d 1296 (1982); and Shuford v. Alabama State Board of Education, 920 F. Supp (three-judge court) (M.D. Ala. 1996) ( We do not need to reach the issue of diligence because there is no evidence of prejudice. The defendants have not shown a reason why it would be more difficult to litigate a 5 claim today than it would have been if the claim had been raised at the time the staggered-election scheme was abandoned. ). See also, See Brooks v. State Bd. of Elections, 775 F. Supp. 1470, , 1481 (S.D. Ga. 1989) (three-judge court) (per curiam) (concluding that equitable arguments can be considered only in the limited context of fashioning an appropriate remedy, and refusing to equitably preclear the changes based on laches), aff d mem., 498 U.S.916, 111 S. Ct. 288 (1990). 4

5 Case 5:11-cv OLG-JES-XR Document 34 Filed 10/19/11 Page 5 of 6 with DOJ attorneys and staff and presenting facts they had developed up to that point regarding the discriminatory aspects of the state senate map. Meanwhile, while DOJ was considering the preclearance issues involving all three statewide plans (July 19 to September 19), some of the plaintiffs here were participating (as part of the Quesada plaintiff group) in the consolidated Perez v. Perry cases in this Court, pending challenges to the congressional and state house map. Trial before this Court took place in the consolidated Perez cases from September 6-16, Plaintiffs here used this time (July to September) to raise some additional financial resources necessary to file a lawsuit challenging the state senate plan. In any event, because preclearance in the DC court has not yet occurred to the state senate plan, and is unlikely to occur, this case is in no different position at this stage than the Perez v. Perry consolidated cases involving the state s proposed congressional and house plans. While a trial has been held in this Court on those proposed plans, if no timely preclearance decision is made to any of the plans, the state s proposed plans are legally unenforceable and none of those plans can be implemented. 7 In such circumstances, this Court will then have the unwelcome obligation to impose an interim, remedial plan or plans. Connor v. Finch, 431 U.S. 407 (1977). 8 Because no preclearance has been obtained and will unlikely be granted in a timely manner, the State defendants in this case are in the exact same position today than they would have been in if the plaintiffs here had filed suit on the same day as any of the plaintiff filings in 7 Plaintiffs here filed a brief on remedy in this case and in the consolidated Perez v. Perry cases, and have filed proposed interim remedial plans in both cases as well. At this point, in light of the failure of any plan to receive preclearance, the Perez v. Perry consolidated cases and this case are in the same posture for remedial purposes. 8 Indeed, in some cases, federal courts have dismissed as premature challenges to redistricting plans that have not been precleared. Cf. Balderas v. State of Texas, C.A. No. 6:01CV158, Slip Op. at page 2, note 5 (Memorandum Opinion, November 14, 2001) (per curiam) (three judge court). Thus, plaintiffs challenge here can hardly be deemed tardy. 5

6 Case 5:11-cv OLG-JES-XR Document 34 Filed 10/19/11 Page 6 of 6 the consolidated Perez v. Perry cases: no preclearance and candidate qualifying and other election deadlines rapidly approaching. Indeed, if anyone is guilty of failing to pursue a matter with due diligence, it is the state defendants who waited until the end of the legislation session to enact a plan, delayed nearly a month the Governor s signing of the legislation, delayed more than a month seeking preclearance, and then pursued the slower preclearance route. Respectfully submitted, DAVID RICHARDS State Bar No Richards, Rodriquez and Skeith, LLP 816 Congress Avenue, Suite 1200 Austin, TX Tel (512) Fax (512) /s/ J. Gerald Hebert J. GERALD HEBERT 191 Somervelle Street, #405 Alexandria, VA (703) Admitted pro hac vice CERTIFICATE OF SERVICE I hereby certify that on this 19 th day of October, 2011, I served a copy of this Plaintiffs Advisory on Laches on counsel who are registered to receive NEFs through the CM/ECF system. All attorneys who have not yet registered to receive NEFs have been served via first-class mail, postage prepaid. /s/ J. Gerald Hebert J. GERALD HEBERT 6