CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 9/4/2023 1

Texas Redistricting in 2011 

Davis v. Perry (Orlando L. Garcia, W.D. Tex. 5:11-cv-788) 

On September 22, 2011, six days after a three-judge redistricting 

bench trial on legislative and congressional districts in Texas, voters 

filed a federal complaint alleging dilution of minority voting 

strength in their districts. The court ordered the defendants to respond by October 3, and the case was consolidated with a collection 

of cases already underway. Seven years after the litigation began, 

the Supreme Court approved districting plans that reflected the political judgments of the state legislature as much as possible, modified by the district court only as necessary to cure legal defects. 

Subject: District lines. Topics: Malapportionment; three-judge 

court; case assignment; section 2 discrimination; section 5 

preclearance; intervention; attorney fees; removal; pro se party. 

On September 22, 2011, eight voters in four state senate districts filed in the 

Western District of Texas’s San Antonio Division a federal complaint against 

state officials, alleging dilution of minority voting strength in their districts.1

The court assigned the case to Judge Orlando L. Garcia as related to previously filed districting challenges.2

 On September 23, the circuit’s chief judge 

appointed the judges presiding over Judge Garcia’s related districting cases as 

a three-judge district court to hear the new case: Judge Garcia, District Judge 

Xavier Rodriguez, also in San Antonio, and Circuit Judge Jerry E. Smith, 

whose chambers were in Houston.3

On September 28, the three-judge court ordered defendants to respond 

to the complaint by October 3.4

Cases Filed Earlier 

The first of the consolidated cases was filed in San Antonio on May 9 by two 

voters seeking judicial intervention in the redistricting of Texas’s senate, 

house of representatives, and state board of education in light of the 2010 

census.5

 The plaintiffs alleged that (1) instead of seeking districts with equal 

populations, Texas was aiming for disparities of no more than 10% and 

(2) Texas was improperly regarding prisoners as residents of their rural 

counties of incarceration, thereby diluting the voting strength of urban residents.6

 The three-judge court was appointed on May 11.7 On May 31, the 

1. Complaint, Davis v. Perry, No. 5:11-cv-788 (W.D. Tex. Sept. 22, 2011), D.E. 1; Davis v. 

Abbott, 781 F.3d 207, 209–10 (5th Cir. 2015). 

2. Docket Sheet, Davis, No. 5:11-cv-788 (W.D. Tex. Sept. 22, 2011); see Abbott v. Perez, 

585 U.S. ___, ___, 138 S. Ct. 2305, 2315 (2018). See generally Ari Berman, Give Us the Ballot 

267–68, 298–99 (2015). 

3. Order, Davis, No. 5:11-cv-788 (W.D. Tex. Sept. 23, 2011), D.E. 4. 

4. Order, id. (Sept. 28, 2011), D.E. 7. 

5. Complaint, Perez v. Texas, No. 5:11-cv-360 (W.D. Tex. May 9, 2011), D.E. 1. 

6. Id. 

7. Order, id. (May 11, 2011), D.E. 4; see 28 U.S.C. § 2284(a) (“A district court of three 
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2 Federal Judicial Center 9/4/2023 

plaintiffs amended their complaint to include Texas’s congressional districts.8

 A second amended complaint filed on June 7 challenged only districts 

for Texas’s house of representatives and its representation in Congress.9

The second consolidated case was also filed on May 9 in San Antonio.10

The Mexican American Legislative Caucus (MALC) of Texas’s house of representatives challenged Texas’s congressional districting, the districting for 

Texas’s legislature and state board of education, and at-large representation 

in Texas’s railroad commission.11 In addition to malapportionment and discriminatory districting, MALC alleged that the census undercounted Latinos.12 An amended complaint omitted claims respecting Texas’s senate and 

state board of education.13 The case was assigned to the same district judge 

and three-judge court as was the first case.14 The court granted intervention 

by the League of United Latin American Citizens (LULAC),15 the Texas 

Democratic Party,16 and Congressman Henry Cuellar.17

A third consolidated case was filed in San Antonio on June 17: an action 

by the Texas Latino Redistricting Task Force and seven voters alleging malapportionment and Latino vote dilution in Texas’s congressional and houseof-representatives districts.18

Also on June 17, Judge Garcia filed an advisory in the three cases of his 

previous service in Texas’s house of representatives and of his associations 

with a few current and former members.19 After a July 1 status conference, 

Judge Garcia consolidated the first three cases on July 6.20

judges shall be convened . . . when an action is filed challenging the constitutionality of the 

apportionment of congressional districts or the apportionment of any statewide legislative 

body.”). 

8. First Amended Complaint, Perez, No. 5:11-cv-360 (W.D. Tex. May 31, 2011), D.E. 5. 

9. Second Amended Complaint, id. (June 7, 2011), D.E. 6; see Order, id. (June 17, 2011), 

D.E. 15 (permitting the second amended complaint); see also Third Amended Complaint, id.

(July 19, 2011), D.E. 53. 

10. Complaint, Mexican Amer. Legislative Caucus v. Texas, No. 5:11-cv-361 (W.D. Tex. 

May 9, 2011), D.E. 1 [hereinafter Mexican Amer. Legislative Caucus Complaint]; see John W. 

Gonzalez, Mexican American Legislators Claim Latinos Undercounted, San Antonio ExpressNews, May 10, 2011, at 11A. 

11. Mexican Amer. Legislative Caucus Complaint, supra note 10.

12. Id. 

13. Amended Complaint, Mexican Amer. Legislative Caucus, No. 5:11-cv-361 (W.D. Tex. 

May 31, 2011), D.E. 4; see Second Amended Complaint, Perez, No. 5:11-cv-360 (W.D. Tex. 

July 19, 2011), D.E. 50. 

14. Order, Mexican Amer. Legislative Caucus, No. 5:11-cv-361 (W.D. Tex. May 10, 2011), 

D.E. 2; Docket Sheet, id. (May 9, 2011). 

15. Order, id. (July 6, 2011), D.E. 26. 

16. Order, Perez, No. 5:11-cv-360 (W.D. Tex. July 13, 2011), D.E. 31. 

17. Order, id. (July 15, 2011), D.E. 42. 

18. Complaint, Tex. Latino Redistricting Task Force v. Perry, No. 5:11-cv-490 (W.D. Tex. 

June 17, 2011), D.E. 1; see Second Amended Complaint, id. (July 25, 2011), D.E. 68; Amended Complaint, id. (June 30, 2011), D.E. 16; Order, id. (June 22, 2011), D.E. 6 (appointing a 

three-judge district court to hear the case). 

19. Advisory, Perez, No. 5:11-cv-360 (W.D. Tex. June 17, 2011), D.E. 14. 

20. Order, id. (July 6, 2011), D.E. 23. 
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On July 25, the three-judge court granted21 motions to intervene in the 

consolidated actions by the Texas Legislative Black Caucus,22 three African 

American members of Congress,23 and the Texas NAACP with three members and voters.24

A joint filing by the parties on June 29 identified four additional pending 

cases filed in Texas federal courts and seven in Texas state courts.25

An action filed in the Eastern District on February 10 by three voters alleged the improper strengthening of Hispanic votes by including in census 

data unauthorized immigrants who disproportionately resided among Hispanic citizens.26 On March 28, Judge Richard A. Schell granted MALC’s motion to intervene as a defendant.27 At a June 23 status conference, Judge 

Schell discussed the plaintiffs’ June 22 request for a three-judge court28 and 

agreed to request one.29 On July 8, he transferred the case to the earlier appointed three-judge court in the Western District.30 The Texas Latino Redistricting Task Force was permitted to intervene as a defendant on July 25.31

On July 26, however, the court granted the plaintiffs a voluntary dismissal.32

On May 13, Texas removed to federal court in the Southern District of 

Texas an action filed by MALC in Hidalgo County’s state court.33 On March 

28, 2013, Judge Randy Crane granted the state’s motion to transfer the case 

to the Western District.34 Judge Garcia remanded the case to state court, because the only federal issue was the accuracy of census methods, but MALC 

could not obtain relief from the state defendants respecting census procedures.35

21. Order, id. (July 25, 2011), D.E. 67. 

22. Intervention Motion, id. (July 19, 2011), D.E. 60. 

23. Intervention Motion, id. (July 19, 2011), D.E. 61. 

24. Intervention Motion, id. (July 22, 2011), D.E. 64. 

25. Agreed Report, id. (June 29, 2011), D.E. 19. 

26. Complaint, Teuber v. Texas, No. 4:11-cv-59 (E.D. Tex. Feb. 2, 2011), D.E. 1; see Second Amended Complaint, id. (June 22, 2011), D.E. 42; First Amended Complaint, id. (May 

27, 2011), D.E. 33. 

27. Order, id. (Mar. 29, 2011), D.E. 13; see Intervention Motion, id. (Feb. 22, 2011), 

D.E. 3. 

28. Request, id. (June 22, 2011), D.E. 43; see Request, id. (June 27, 2011), D.E. 46 (corrected filing). 

29. Transcript at 13–34, id. (June 23, 2011, filed Sept. 1, 2011), D.E. 53; see Order, id. (July 6, 2011), D.E. 50 (appointing a three-judge district court consisting of Judges Schell, 

Smith, and Garcia). 

30. Order, id. (July 8, 2011), D.E. 52; see Docket Sheet, Teuber v. Texas, No. 5:11-cv-572 

(W.D. Tex. July 11, 2011). 

31. Order, Teuber, No. 5:11-cv-572 (W.D. Tex. July 25, 2011), D.E. 65. 

32. Order, id. (July 26, 2011), D.E. 68. 

33. Notice of Removal, Mexican Amer. Legislative Caucus v. Texas, No. 7:11-cv-144 

(S.D. Tex. May 13, 2011), D.E. 1. 

34. Order, id. (Mar. 28, 2013), D.E. 21; see Docket Sheet, Mexican Amer. Legislative Caucus v. Texas, No. 5:13-cv-261 (W.D. Tex. Apr. 1, 2013). 

35. Opinion, Mexican Amer. Legislative Caucus, No. 5:13-cv-261 (W.D. Tex. Dec. 18, 

2013), D.E. 28. 
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4 Federal Judicial Center 9/4/2023 

On May 30, 2011, the day that Texas’s legislature adjourned a legislative 

session without drawing district lines for the state’s increased representation 

in Congress, the City of Austin, Travis County, which includes Austin, and 

nine voters filed a federal action in the Western District’s Austin Division 

seeking judicial oversight of congressional redistricting.36 An amended complaint filed on July 18 challenged the congressional districts drawn in the legislature’s special session.37 On July 6, the circuit’s chief judge appointed Judge 

Lee Yeakel, to whom the case was originally assigned, and Judges Smith and 

Garcia as a three-judge court to hear the case.38 On July 27, Judges Smith and 

Garcia transferred the case to their three-judge court with Judge Rodriguez.39

Judge Yeakel dissented from the transfer.40 He opined that the federal courts 

should follow the rule created by Texas’s supreme court and regard the first 

case filed after the legislature adjourns following a new census as the first ripe 

case.41 He also dissented from the consolidation of his congressional redistricting case with the districting cases respecting the state’s representative 

bodies.42

A pro se federal complaint filed on June 15 in the Southern District’s 

Houston Division challenged new congressional district lines as drawn with 

improper political gerrymandering.43 On July 20, Judge Lee H. Rosenthal 

transferred the case to the Western District.44

On June 17, Governor Rick Perry signed into law legislative redistricting 

of Texas’s house of representatives, and on July 18 he signed into law legislative redistricting of Texas’s representatives to Congress.45 Pursuant to section 

5 of the Voting Rights Act,46 Texas sought preclearance of this redistricting, 

36. Complaint, Rodriguez v. Perry, No. 1:11-cv-451 (W.D. Tex. May 30, 2011), D.E. 1. 

37. Amended Complaint, id. (July 18, 2011), D.E. 23. 

38. Order, id. (July 6, 2011), D.E. 20. 

Judge Yeakel retired on May 1, 2023. Federal Judicial Center Biographical Directory of 

Article III Federal Judges [hereinafter FJC Biographical Directory], www.fjc.gov/history/ 

judges. 

39. Order, Rodriguez, No. 1:11-cv-451 (W.D. Tex. July 27, 2011), D.E. 29; see Docket 

Sheet, Rodriguez v. Perry, No. 5:11-cv-635 (W.D. Tex. May 30, 2011). 

40. Transfer Dissent, Rodriguez, No. 1:11-cv-451 (W.D. Tex. July 27, 2011), D.E. 30 

[hereinafter Rodriguez Transfer Dissent], 2011 WL 3209075. 

41. Id. at 3–4; see Perry v. Del Rio, 66 S.W.3d 239 (Tex. 2001). 

42. Rodriguez Transfer Dissent, supra note 40, at 5–6. 

43. Complaint, Morris v. Texas, No. 4:11-cv-2244 (S.D. Tex. June 15, 2011), D.E. 1; see

Amended Complaint, id. (June 27, 2011), D.E. 7. 

The three-judge court in the Western District denied a July 8, 2014, motion to amend the 

complaint. Docket Sheet, Perez, No. 5:11-cv-360 (W.D. Tex. May 9, 2011) [hereinafter Perez

Docket Sheet]; see Motion to Amend Complaint, id. (July 8, 2014), D.E. 1128.

44. Order, Morris, No. 4:11-cv-2244 (S.D. Tex. July 20, 2011), D.E. 24; see Order, Morris 

v. Texas, No. 5:11-cv-615 (W.D. Tex. July 26, 2011), D.E. 26 (appointing a three-judge district court). 

45. Perez v. Perry, 835 F. Supp. 2d 209, 211 (W.D. Tex. 2011); Pretrial Opinion, Perez, 

No. 5:11-cv-360 (W.D. Tex. Sept. 2, 2011), D.E. 285 [hereinafter Perez Pretrial Opinion], 

2011 WL 9160142; see Texas v. United States, 831 F. Supp. 2d 244, 246 (D.D.C. 2011). 

46. See Voting Rights Act of 1965, Pub. L. No. 89-110, § 5, 79 Stat. 437, 439, as amended, 
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Federal Judicial Center 9/4/2023 5

as well as redistricting for Texas’s senate and its state board of education, by 

filing a civil action in the U.S. District Court for the District of Columbia on 

July 19.47

A fourth federal case originally filed in San Antonio was filed by six voters on July 15 claiming that Texas’s new congressional districts were “drawn 

to insure that population gains in minority communities from 2000 to 2010 

did not afford minority voters increased electoral opportunity.”48 This case 

joined the consolidation on July 21.49

The Next Phase of the Litigation 

On October 17, LULAC filed an action challenging Texas’s senate districts,50

and this action joined the consolidation two days later.51

In pretrial rulings on September 2, the three-judge court dismissed 

(1) political gerrymandering claims because their proponents had not specified a “reliable legal standard” for resolving them and (2) claims respecting 

the counting of prisoners as without a legal basis.52 The court conducted a 

bench trial from Tuesday, September 6, through Friday, September 16, including the intervening Saturday.53 On September 30, the court adopted a 

schedule for the creation of court-drawn interim districts should preclearance of the legislature’s districts not be resolved; as amended, the order 

specified that hearings would begin on October 31.54

Judge Rosemary M. Collyer drew the preclearance action in the District 

of Columbia and requested appointment of a three-judge court to hear the 

case, as required by section 5(a) of the Voting Rights Act.55 The circuit’s chief 

52 U.S.C. § 10304 (requiring preclearance of changes to voting procedures in jurisdictions 

with a certified history of discrimination). 

47. Complaint, Texas v. United States, No. 1:11-cv-1303 (D.D.C. July 19, 2011), D.E. 1; 

Abbott v. Perez, 585 U.S. ___, ___, 138 S. Ct. 2305, 2315 (2018); Perry v. Perez, 565 U.S. 388, 

391 (2012); Texas v. United States, 798 F.3d 1108, 1111 (D.C. Cir. 2015); Davis v. Abbott, 

781 F.3d 207, 209 (5th Cir. 2015); Perez v. Abbott, 274 F. Supp. 3d 624, 632 & n.7 (W.D. Tex. 

2017); Texas v. United States, 247 F. Supp. 3d 44, 47 (D.D.C. 2017); Texas v. United States, 

49 F. Supp. 3d 27, 31–32 (D.D.C. 2014); Perez v. Texas, 970 F. Supp. 2d 593, 596 (W.D. Tex. 

2013); Texas v. United States, 887 F. Supp. 2d 133, 138 (D.D.C. 2012); Perez, 835 F. Supp. 2d 

at 211; Texas v. United States, 831 F. Supp. 2d at 246–47. 

48. Complaint at 2, Quesada v. Perry, No. 5:11-cv-592 (W.D. Tex. July 15, 2011), D.E. 1; 

see Amended Complaint, Perez, No. 5:11-cv-360 (W.D. Tex. Aug. 2, 2011), D.E. 105; see also

Nolan Hicks, Democrats File New Suit, San Antonio Express-News, July 16, 2011, at 1B. 

49. Order, Quesada, No. 5:11-cv-592 (W.D. Tex. July 21, 2011), D.E. 8; see Order, id. (July 20, 2011), D.E. 6 (appointing a three-judge district court). 

50. Complaint, LULAC v. Perry, No. 5:11-cv-855 (W.D. Tex. Oct. 17, 2011), D.E. 1. 

51. Order, id. (Oct. 19, 2011), D.E. 4. 

52. Perez Pretrial Opinion, supra note 45, at 19–22, 24–25. 

53. Amended Interim Districting Scheduling Order, Perez, No. 5:11-cv-360 (W.D. Tex. 

Oct. 4, 2011), D.E. 391 [hereinafter Perez Amended Interim Districting Scheduling Order], 

2011 WL 10843392; Perez Docket Sheet, supra note 43. 

54. Perez Amended Interim Districting Scheduling Order, supra note 53; see Order, Perez, No. 5:11-cv-360 (W.D. Tex. Sept. 30, 2011), D.E. 385 (order before amendment); Perez

Docket Sheet, supra note 43 (noting hearings on October 31 and November 3, 2011).

55. Order, Texas v. United States, No. 1:11-cv-1303 (D.D.C. July 21, 2011), D.E. 4; Tran-
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6 Federal Judicial Center 9/4/2023 

judge appointed Circuit Judge Thomas B. Griffith and District Judge Beryl A. 

Howell to join Judge Collyer.56 The court granted seven motions to intervene.57 The court denied without prejudice intervention by the Texas Democratic Party, which did not take a position on the controversy but sought to 

protect its interests should a remedy affect election dates; the court determined that such a concern was premature.58

Judge Collyer quickly determined that no party objected to the board-ofeducation districts, so the court granted Texas preclearance for them.59 So 

that the three-judge court in Texas would know whether it should proceed 

with the crafting of interim districts, the three-judge court in the District of 

Columbia issued a brief order on November 8, after briefing and oral argument on November 2, announcing its conclusion 

that the State of Texas used an improper standard or methodology to determine which districts afford minority voters the ability to elect their preferred candidates of choice and that there are material issues of fact in dispute that prevent this Court from entering declaratory judgment that the 

three redistricting plans meet the requirements of Section 5 of the Voting 

Rights Act.60

A complete published opinion followed on December 22.61

“With the invaluable technical assistance of the staff at Texas Legislative 

Council,”62 the district judges on the Texas three-judge court announced on 

November 23 an interim districting plan for Texas’s house of representatives63 and senate.64 Three days later, the court announced a districting plan 

script at 6–7, id. (Sept. 21, 2011, filed Oct. 13, 2011), D.E. 71 [hereinafter Sept. 21, 2011, Texas v. United States Transcript]; see 52 U.S.C. § 10304(a) (2015). 

56. Order, Texas v. United States, No. 1:11-cv-1303 (D.D.C. July 27, 2011), D.E. 7. 

Judge Griffith retired on September 1, 2020. FJC Biographical Directory, supra note 38. 

57. Order, Texas v. United States, No. 1:11-cv-1303 (D.D.C. Sept. 29, 2011), D.E. 55; Order, id. (Sept. 8, 2011), D.E. 32; Order, id. (Aug. 16, 2011), D.E. 11; Texas v. United States, 

798 F.3d 1108, 1111 (D.C. Cir. 2015); Texas v. United States, 49 F. Supp. 3d 27, 32 & n.2 

(D.D.C. 2014); Texas v. United States, 887 F. Supp. 2d 133, 138 n.2 (D.D.C. 2012). 

58. Order, Texas v. United States, No. 1:11-cv-1303 (D.D.C. Oct. 7, 2011), D.E. 65. 

59. Docket Sheet, id. (July 19, 2011) (noting a minute order on September 22, 2011); 

Sept. 21, 2011, Texas v. United States Transcript, supra note 55, at 8–15; Texas v. United 

States, 887 F. Supp. 2d at 138 n.1; see Texas v. United States, 831 F. Supp. 2d 244, 247 & n.3 

(D.D.C. 2011). 

60. Order, Texas v. United States, No. 1:11-cv-1303 (D.D.C. Nov. 8, 2011), D.E. 106, 2011 

WL 5402888; see Perry v. Perez, 565 U.S. 388, 391 (2012); Texas v. United States, 887 F. 

Supp. 2d at 139; Perez v. Abbott, 274 F. Supp. 3d 624, 633–34 (W.D. Tex. 2017); Perez v. 

Perry, 835 F. Supp. 2d 209, 211 (W.D. Tex. 2011); see also Nolan Hicks, “Improper Standard 

or Methodology” Found, San Antonio Express-News, Nov. 9, 2011, at 1B; Trial on Redistricting Maps Is Ordered, N.Y. Times, Nov. 9, 2011, at A21. 

61. Texas v. United States, 831 F. Supp. 2d 244; see Texas v. United States, 247 F. Supp. 3d 

44, 47 (D.D.C. 2017); Texas v. United States, 887 F. Supp. 2d at 139. 

62. Perez, 835 F. Supp. 2d at 212. 

63. Id., 835 F. Supp. 2d 209; Ex. A, Opinion, Perez v. Perry, No. 5:11-cv-360 (W.D. Tex. 

Nov. 23, 2011), D.E. 528; see Supplemental Opinion, id. (Dec. 2, 2011), D.E. 549. 

64. Order, Davis v. Perry, No. 5:11-cv-788 (W.D. Tex. Nov. 23, 2011), D.E. 89, 2011 WL 

6207134. 
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Federal Judicial Center 9/4/2023 7

for Texas’s representation in Congress.65 The circuit judge, dissenting from 

the two house plans, would have given greater deference to enacted district 

lines.66 On December 8, the Supreme Court stayed the district court’s ruling 

and set the matter for argument on January 9, 2012.67

The Supreme Court’s Rulings 

On January 20, the Supreme Court vacated the district court’s maps because 

they did not sufficiently incorporate Texas’s political and policy judgments 

that were reflected in Texas’s challenged maps.68 The district court should 

have deviated from the challenged maps only to correct probable constitutional or voting-rights violations.69 Although the court should have taken into account probable section 5 violations as well as probable violations of the 

claims before it, “The court should presume neither that a State’s effort to 

preclear its plan will succeed nor that it will fail.”70 The Texas three-judge 

court adopted new plans on February 28.71 The Supreme Court declined to 

stay these plans.72

On August 28, the District of Columbia court “conclude[d] that Texas 

has failed to show that any of the redistricting plans merits preclearance.”73

65. Order, Perez, No. 5:11-cv-360 (W.D. Tex. Nov. 26, 2011), D.E. 544 [hereinafter Nov. 

26, 2011, Perez Order]. 

66. Perez, 835 F. Supp. 2d at 218–27 (Judge Smith, dissenting); Nov. 26, 2011, Perez Order, supra note 65, at 17–21 (same). 

67. Perry v. Perez, 565 U.S. 1090 (2011); Perry v. Davis, 565 U.S. 1090 (2011); Perry v. Perez, 565 U.S. 1090 (2011); Perry v. Perez, 565 U.S. 388, 392 (2012); Perez v. Texas, 970 F. 

Supp. 2d 593, 597 (W.D. Tex. 2013). 

68. Perez, 565 U.S. 388; Abbott v. Perez, 585 U.S. ___, ___, 138 S. Ct. 2305, 2316 (2018); 

Evenwel v. Abbott, 578 U.S. 54, 61–62 (2016); Texas v. United States, 49 F. Supp. 3d 27, 33 

(D.D.C. 2014); see Daniel P. Tokaji, Election Law in a Nutshell 99–101 (2013); Todd J. Gillman & Gromer Jeffers, Jr., Justices Reject Court’s Remaps, Dallas Morning News, Jan. 21, 

2012, at A1; Adam Liptak, Justices Reject Election Maps by U.S. Court, N.Y. Times, Jan. 21, 

2012, at A1. 

69. Perez, 565 U.S. at 393–97. 

70. Id. at 395. 

71. Perez v. Texas, 891 F. Supp. 2d 808 (W.D. Tex. 2012); Order, Davis v. Perry, No. 

5:11-cv-788 (W.D. Tex. Feb. 28, 2012), D.E. 141 (Texas’s senate); Order, Perez v. Perry, No. 

5:11-cv-360 (W.D. Tex. Feb. 28, 2012), D.E. 682 (Texas’s house of representatives); Order, 

id. (Feb. 28, 2012), D.E. 681 (U.S. House of Representatives); Perez, 970 F. Supp. 2d at 597; 

Texas v. United States, 887 F. Supp. 2d 133, 139 (D.D.C. 2012); see Perez v. Perry, 26 F. Supp. 

3d 612, 614 (W.D. Tex. 2014); see also Court Issues Election Maps, Dallas Morning News, 

Feb. 29, 2012, at 1; Manny Fernandez, Federal Judges Approve Final Texas Redistricting 

Maps, N.Y. Times, Feb. 29, 2012, at A17; Nolan Hicks, New Maps for Voting Are Released, 

San Antonio Express-News, Feb. 29, 2012, at 1A. 

72. LULAC v. Perry, 567 U.S. 966 (2012). 

73. Texas v. United States, 887 F. Supp. 2d at 138; see id. at 178 (“We conclude that Texas 

has not met its burden to show that the U.S. Congressional and State House Plans will not 

have a retrogressive effect, and that the U.S. Congressional and State Senate Plans were not 

enacted with discriminatory purpose.”); Perez, 585 U.S. at ___, 138 S. Ct. at 2316; Texas v. 

United States, 798 F.3d 1108, 1112 (D.C. Cir. 2015); Texas v. United States, 49 F. Supp. 3d at 

33; Davis v. Abbott, 781 F.3d 207, 211 (5th Cir. 2015); see also Perez, 26 F. Supp. 3d at 614; 

Perez, 970 F. Supp. 2d at 597; Robert Barnes, Federal Court Throws Out Texas Redistricting 
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In a case arising out of Alabama, the Supreme Court declined on June 25, 

2013, to hold section 5 unconstitutional, but the Court did hold unconstitutional the criteria for which jurisdictions require section 5 preclearance.74

The Court vacated the denial of preclearance to Texas and remanded the case 

for further consideration in light of the change in section 5 law.75 On December 3, the district court dismissed the preclearance action as moot.76

Attorney Fees 

Later, the three-judge court determined that remaining matters, such as fee 

awards, could be addressed by Judge Collyer alone.77 She awarded intervenors who sought fees a total of $1,096,770.01 in attorney fees and costs on 

June 18, 2014.78

This matter presents a case study in how not to respond to a motion for 

attorney fees and costs. . . . [R]ather than engage the fee applicants, Plainitff 

Texas basically ignores the arguments supporting an award of fees and 

costs. In a three-page filing entitled “Advisory,” Texas trumpets the Supreme Court’s decision, expresses indignation at having to respond at all, 

and presumes that the motion for attorney fees is so frivolous that Texas 

need not provide further briefing in opposition unless requested. Such an 

opposition is insufficient in this jurisdiction. Circuit precedent and the Local Rules of this Court provide that the failure to respond to an opposing 

party’s arguments results in waiver as to the unaddressed contentions, and 

the Court finds that Texas’s “Advisory” presents no opposition on the apPlan, Citing Bias, Wash. Post, Aug. 29, 2012, at A5; Manny Fernandez, Federal Court Finds 

Texas Voting Maps Discriminatory, N.Y. Times, Aug. 29, 2013, at A13; Gary Martin & Gary 

Scharrer, Legislature’s Redistricting Rule Illegal, San Antonio Express-News, Aug. 29, 2012, 

at 1. 

74. Shelby County v. Holder, 570 U.S. 529 (2013); see Perez, 585 U.S. at ___, 138 S. Ct. at 

2317; Texas v. United States, 798 F.3d at 1112, 1118 (“the Supreme Court did not invalidate 

Section 5; it only invalidated the formula used to determine which jurisdictions would be 

required to seek preclearance”); Perez v. Abbott, 274 F. Supp. 3d 624, 634 & n.11 (W.D. Tex. 

2017); Texas v. United States, 247 F. Supp. 3d 44, 46–47 (D.D.C. 2017); Texas v. United 

States, 49 F. Supp. 3d at 33; see also Robert Barnes, Court Blocks Key Part of Voting Rights 

Act, Wash. Post, June 26, 2013, at A1; Adam Liptak, Justices Void Oversight of States, Issue at 

Heart of Voting Rights Act, N.Y. Times, June 26, 2013, at A1. 

75. Texas v. United States, 570 U.S. 928 (2013); Texas v. United States, 798 F.3d at 1112; 

Perez, 274 F. Supp. 3d at 634; Perez, 26 F. Supp. 3d at 615; Texas v. United States, 49 F. Supp. 

3d at 33; Perez, 970 F. Supp. 2d at 598. 

76. Opinion, Texas v. United States, No. 1:11-cv-1303 (D.D.C. Dec. 3, 2013), D.E. 255 

[hereinafter Texas v. United State Mootness Opinion]; Perez, 585 U.S. at ___, 138 S. Ct. at 

2317; Texas v. United States, 798 F.3d at 1112; Perez, 274 F. Supp. 3d at 634; Texas v. United 

States, 49 F. Supp. 3d at 34. 

77. Order, Texas v. United States, No. 1:11-cv-1303 (D.D.C. Jan. 22, 2014), D.E. 263; 

Texas v. United States, 247 F. Supp. 3d at 47; Texas v. United States, 49 F. Supp. 3d at 34–35; 

see Texas v. United States, 798 F.3d at 1113; Texas v. United State Mootness Opinion, supra

note 76, at 4. 

78. Texas v. United States, 49 F. Supp. 3d at 44; Texas v. United States, 798 F.3d at 1113;

Texas v. United States, 247 F. Supp. 3d at 46–48. 
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Federal Judicial Center 9/4/2023 9

plicable law. Accordingly, the Court will award the requested fees and 

costs.79

The court of appeals affirmed the fee award on August 18, 2015.80 On March 

30, 2017, Judge Collyer awarded the intervenors $226,894.67 in attorney fees 

for the appeal.81

2013 District Lines 

On June 26, 2013, Texas’s governor signed into law new districting plans for 

Texas’s senate, house of representatives, and representation in Congress.82

The senate plan was not challenged.83 Texas’s legislature adopted the court’s 

plan for Congress and made slight modifications to the court’s plan for Texas’s house.84

The Justice Department advised the three-judge court in Texas on July 25 

that if it found intentional voting discrimination in the cases before it, it was 

empowered under section 3(c) of the Voting Rights Act to retain jurisdiction 

over Texas’s voting laws and subject them to preclearance requirements 

similar to those provided for in section 5.85 Over Judge Smith’s dissent, Judges Garcia and Rodriguez granted the department’s motion to intervene.86

The court decided on September 6 to allow Texas to proceed with 2013 

districts while the court further considered the merits of the plaintiffs’ 

79. Texas v. United States, 49 F. Supp. 3d at 31; see Advisory, Texas v. United States, No. 

1:11-cv-1303 (D.D.C. Dec. 20, 2013), D.E. 259. 

80. Texas v. United States, 798 F.3d 1108, cert. denied, 577 U.S. 1119 (2016); see id. at 

1116 (“To say that Texas ‘prevailed’ in this suit because a different litigant in a different suit 

won on different grounds that Texas specifically told the district court it would not raise is, 

to say the least, an unnatural use of the word ‘prevailing.’”); Texas v. United States, 247 F. 

Supp. 3d at 46–48; see also Order, Texas v. United States, No. 1:11-cv-1303 (D.D.C. Apr. 26, 

2016), D.E. 279 (allocating the fee award among six law firms). 

81. Texas v. United States, 247 F. Supp. 3d 44; Order, Texas v. United States, No. 1:11-cv1303 (D.D.C. Apr. 4, 2017), D.E. 290. 

82. Perez v. Perry, 26 F. Supp. 3d 612, 615; Texas v. United States, 798 F.3d at 1112; Texas 

v. United States, 49 F. Supp. 3d at 33; Advisory, Perez v. Texas, No. 5:11-cv-360 (W.D. Tex. 

June 27, 2013), D.E. 763; see Evenwel v. Abbott, 578 U.S. 54, 62 (2016). 

83. Perez v. Texas, 970 F. Supp. 2d 593, 596 n.1 (W.D. Tex. 2013); see Abbott v. Perez, 

585 U.S. ___, ___, 138 S. Ct. 2305, 2316 (2018). 

84. Perez, 585 U.S. at ___, 138 S. Ct. at 2317; Perez, 970 F. Supp. 2d at 598, 606–07. 

85. Statement of Interest, Perez, No. 5:11-cv-360 (W.D. Tex. July 25, 2013), D.E. 827; see

Voting Rights Act of 1965, Pub. L. No. 89-110, § 3(c), 79 Stat. 437, 437, as amended, 52 

U.S.C. § 10302; see also Perez, 585 U.S. at ___, 138 S. Ct. at 2322; Marcia Coyle & Todd 

Ruger, DOJ Messes with Texas Over VRA, Nat’l L.J., July 29, 2013, at 11; Richard L. Hasen, 

Holder’s Texas-Size Gambit: Will It Save the Voting Rights Act?, Nat’l L.J., Aug. 5, 2013, at 39; 

Sari Horwitz, State Voting Laws to Be Challenged, Wash. Post, July 26, 2013, at A1; Gromer 

Jeffers, Jr., U.S. Challenges Texas on Election Laws, Dallas Morning News, July 26, 2013, at 

A1; Adam Liptak & Charlie Savage, U.S. Asks Court to Limit Texas on Ballot Rules, N.Y. 

Times, July 26, 2013, at A1; Gary Martin, U.S. Hits Texas on Voting Rights, San Antonio Express-News, July 26, 2013, at 1. 

86. Opinion, Perez, No. 5:11-cv-360 (W.D. Tex. Sept. 24, 2013), D.E. 904; see Intervention Complaint, id. (Sept. 25, 2013). 
Texas Redistricting in 2011 

10 Federal Judicial Center 9/4/2023 

claims.87 In September, plaintiffs and intervenors filed eleven amended complaints.88 On June 17, 2014, the court unanimously determined that politicalgerrymandering claims were nonjusticiable, but challenges to the 2011 plans 

were not moot.89 “[T]he State has steadfastly maintained the legality of all of 

the challenged conduct and has not announced any policy change that would 

preclude the Legislature from engaging in the same alleged wrongful conduct.”90

On January 8, 2014, the court awarded plaintiffs who challenged the senate districts $360,659.68 in attorney fees and expenses.91 An additional 

$2,718.75 was awarded on January 15.92 The court of appeals determined, 

however, on March 17, 2015, that the senate-district plaintiffs did not qualify 

as prevailing parties.93 On November 6, 2015, the three-judge court declined 

to enjoin the 2013 districts for 2016 elections.94

One Impermissible Political Gerrymander 

A new malapportionment challenge to Texas’s senate districts was filed in 

Austin on April 21, 2014,95 and assigned to a three-judge court consisting of 

Judge Yeakel, Circuit Judge Catharina Haynes, and Eastern District Judge 

Michael H. Schneider.96 On November 5, the court held that the Equal Protection Clause did not require states to apportion their legislative districts 

87. Perez, 970 F. Supp. 2d at 596, 606–09; see Perez, 585 U.S. at ___, 138 S. Ct. at 2313, 

2317–18. 

88. Amended Crossclaim, Perez, No. 5:11-cv-360 (W.D. Tex. Sept. 18, 2013), D.E. 902; 

Second Amended Complaint, id. (Sept. 18, 2013), D.E. 901; Third Amended Complaint, id.

(Sept. 18, 2013), D.E. 900; Third Amended Complaint, id. (Sept. 18, 2013), D.E. 899; Fifth 

Amended Complaint, id. (Sept. 18, 2013), D.E. 898; Third Amended Complaint, id. (Sept. 

17, 2013), D.E. 897; Second Amended Complaint, id. (Sept. 17, 2013), D.E. 896; Third 

Amended Complaint, id. (Sept. 15, 2013), D.E. 894; Second Amended Complaint, id. (Sept. 

12, 2013), D.E. 893; First Amended Complaint, id. (Sept. 11, 2013), D.E. 892; Fourth 

Amended Complaint, id. (Sept. 9, 2013), D.E. 891. 

89. Perez v. Perry, 26 F. Supp. 3d 612 (W.D. Tex. 2014). 

90. Id. at 621. 

The court held on June 23, 2014, that according to Fifth Circuit law, “vote dilution claims 

are not cognizable under the Fifteenth Amendment.” Order, Perez, No. 5:11-cv-360 (W.D. 

Tex. June 23, 2014), D.E. 1108. 

91. Davis v. Perry, 991 F. Supp. 2d 809 (W.D. Tex. 2014), rev’d, Davis v. Abbott, 781 F.3d 

207 (5th Cir. 2015). 

The court determined that it was premature to resolve other fee motions. Opinion, Perez, 

No. 5:11-cv-360 (W.D. Tex. Jan. 8, 2014), D.E. 951, 2014 WL 69888. 

92. Supplemental Order, Davis v. Perry, No. 5:11-cv-788 (W.D. Tex. Jan. 15, 2014), D.E. 

217, 2014 WL 172119; Davis, 781 F.3d at 213. 

93. Davis, 781 F.3d 207, cert. denied, 577 U.S. 1006 (2015). 

94. Opinion, Perez, No. 5:11-cv-360 (W.D. Tex. Nov. 6, 2015), D.E. 951, 2015 WL 

6829596; see Abbott v. Perez, 585 U.S. ___, ___, 138 S. Ct. 2305, 2313, 2317–18 (2018). 

95. Complaint, Evenwel v. Perry, No. 1:14-cv-335 (W.D. Tex. Apr. 21, 2014), D.E. 1; Evenwel v. Abbott, 578 U.S. 54, 62 (2016). 

96. Order, Evenwel, No. 1:14-cv-335 (W.D. Tex. Apr. 28, 2014), D.E. 9. 

Judge Schneider retired on October 1, 2016. FJC Biographical Directory, supra note 38. 
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Federal Judicial Center 9/4/2023 11

equally by both total population and voter population; equal total populations were enough.97 On April 4, 2016, the Supreme Court agreed.98

Over Judge Smith’s dissent, Judges Rodriguez and Garcia determined on 

March 10, 2017, that the 2011 plan for Texas’s congressional districts was 

discriminatory in violation of section 2 of the Voting Rights Act.99 The court 

noted that “the 2013 plans are heavily derived from the 2011 plans, and 

Plaintiffs contend that many of the alleged violations of the [Voting Rights 

Act] and the Constitution initially enacted in 2011 persist in the 2013 plans, 

though some perhaps to a lesser degree.”100 The court also noted that the section 3(c) question remained an open one.101 The court reached a similar decision on Texas’s house of representatives on April 20.102

In an August 15, 2017, order, the district court concluded “that the racially discriminatory intent and effects that it previously found in the 2011 

plans carry over into the 2013 plans where those district lines remain unchanged.”103 Justice Alito stayed this order on August 28 pending further Supreme Court consideration.104 By a vote of five to four, the full Supreme 

Court extended the stay pending appeal.105

97. Opinion, Evenwel, No. 1:14-cv-335 (W.D. Tex. Nov. 5, 2014), D.E. 35, 2014 WL 

5780507. 

98. Evenwel, 578 U.S. 54; id. at 64 (“As history, precedent and practice demonstrate, it is 

plainly permissible for jurisdictions to measure equalization by the total population of state 

and local legislative districts.”); see Robert Barnes, High Court Halts Effort to Redefine Voting 

Rights, Wash. Post, Apr. 5, 2016, at A1; Adam Liptak, Justices Reject Challenge on “One Person One Vote,” N.Y. Times, Apr. 5, 2016, at A1; see also David Montgomery & Michael 

Wines, District Fight May Persist in Texas After Ruling, N.Y. Times, Apr. 5, 2016, at A14. 

99. Perez v. Abbott, 253 F. Supp. 3d 864, 879 (W.D. Tex. 2017) (amended opinion); see

Voting Rights Act of 1965, Pub. L. No. 89-110, § 2, 79 Stat. 437, 437, as amended, 52 U.S.C. 

§ 10301; see also Perez, 585 U.S. at ___, 138 S. Ct. at 2317; Robert Barnes, Gerrymandering by 

Tex. Lawmakers Aimed to Hurt Minorities, Judges Say, Wash. Post, Mar. 12, 2017, at A4; 

Manny Fernandez, Texas Congressional Maps Are Struck Down for Bias, N.Y. Times, Mar. 

12, 2017, at 21. 

100. Perez, 253 F. Supp. 3d at 874. 

101. Id. at 874–75. 

102. Perez, 585 U.S. at ___, 138 S. Ct. at 2317. 

103. Perez v. Abbott, 274 F. Supp. 3d 624, 652 (W.D. Tex. 2017) (reviewing congressional 

districts); see Perez v. Abbott, 267 F. Supp. 750 (W.D. Tex. 2017) (finding intentional discrimination in a review of state house-of-representatives districts); see also Perez, 585 U.S. at 

___, 138 S. Ct. at 2317–18; James Barragán, Texas Map Ordered Redone, Dallas Morning 

News, Aug. 16, 2017, at A1; Sara Randazzo, Court Says to Redraw Two Texas Districts, Wall 

St. J., Aug. 16, 2017, at A2; James Barragán, Court Orders Texas Remap, Dallas Morning 

News, Aug. 25, 2017, at A1. 

104. Abbott v. Perez, 138 S. Ct. 1 (2017); see Allie Morris, Redistricting Order Suspended, 

San Antonio Express News, Sept. 1, 2017, at A2. 

105. Abbott v. Perez, 582 U.S. 963 (2017); see Robert Barnes, Gerrymandering, Sales Tax 

in Supreme Court’s Sights, Wash. Post, Jan. 13, 2018, at A8; Robert Barnes, Justices: Electoral 

Districts in Texas Needn’t Shift Yet, Wash. Post, Sept. 13, 2017, at A4; Adam Liptak, Court 

Halts Redistricting in Texas as It Weighs Case, N.Y. Times, Sept. 13, 2017, at A17. 

The Supreme Court dismissed for want of jurisdiction precautionary appeals by some 

plaintiffs. Morris v. Texas, 583 U.S. 1090 (2018); Tex. Democratic Party v. Abbott, 583 U.S. 

1090 (2018). 
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12 Federal Judicial Center 9/4/2023 

The Supreme Court decided on June 25, 2018, that “[t]he 2013 Legislature was not obligated to show that it had ‘cured’ the unlawful intent that the 

court attributed to the 2011 Legislature.”106 The Court approved the boundaries of all congressional and legislative districts, with the exception of one 

house district, which had been substantially modified from the district 

court’s plan, and which the Supreme Court found to be “an impermissible 

racial gerrymander.”107

The district court decided on July 3 that however the racial gerrymander 

is remedied, “all the maps for the 2018 elections will remain the same as for 

2016.”108

Although the Supreme Court decided in 2013 that the section 4 criteria 

for which jurisdictions were subject to section 5 preclearance of election 

changes were out of date, a jurisdiction could be adjudged subject to preclearance requirements pursuant to section 3 of the Voting Rights Act as an 

equitable remedy for a showing of invidious discrimination.109 Judges Rodriguez, Smith, and Garcia decided on July 24, 2019, that equitable considerations did not justify subjecting Texas to section 3 preclearance requirements.110 “Although the Court’s findings of intentional racial discrimination 

in violation of the Fourteenth Amendment with regard to the 2011 plans are 

sufficient to trigger bail-in, and although the Court has serious concerns 

about the State’s past conduct,”111 the judges predicted that the Supreme 

Court would not support such a remedy.112

Attorney-fee litigation is pending.113

106. Perez, 585 U.S. at ___, 138 S. Ct. at 2313; see Robert Barnes, Supreme Court Favors 

Texas in Redistricting Case, Wash. Post, June 26, 2018, at A4; Jess Bravin & Brent Kendall, 

High Court Upholds Texas District Maps, Wall St. J., June 26, 2018, at A2; Adam Liptak, 

Texas Voting Map, Called Illegal, Is Upheld Because of an Error by a Lower Court, N.Y. 

Times, June 26, 2018, at A20. 

“The Court today goes out of its way to permit the State of Texas to use maps that the 

three-judge District Court unanimously found were adopted for the purpose of preserving 

the racial discrimination that tainted its previous maps.” Perez, 585 U.S. at ___, 138 S. Ct. at 

2335 (Justice Sotomayor, dissenting). 

107. Perez, 585 U.S. at ___, 138 S. Ct. at 2330, 2334–35. 

108. Order, Perez v. Perry, No. 5:11-cv-360 (W.D. Tex. July 3, 2018), D.E. 1586. 

109. 52 U.S.C. § 10302(c); see, e.g., Patino v. City of Pasadena, 230 F. Supp. 3d 667, 730–

31 (S.D. Tex.), stay denied, 677 F. App’x 950 (5th Cir. 2017), and appeal dismissed as settled, 

Order, No. 17-20030 (5th Cir. Oct. 18, 2017). 

110. Perez v. Abbott, 390 F. Supp. 3d 803 (W.D. Tex. 2019). 

111. Id. at 807. 

112. Id. at 821 (“the Court concludes that ordering preclearance on the current record 

would be inappropriate, given the recent guidance from the Supreme Court and the Fifth 

Circuit”). 

113. Perez Docket Sheet, supra note 43; see Award of Costs, Perez, No. 5:11-cv-360 (W.D. 

Tex. Oct. 29, 2021), D.E. 1720 ($1,797.52); Award of Costs, id. (Oct. 29, 2021), D.E. 1719 

($1,098.90); Opinion, id. (July 13, 2021), D.E. 1683 (determining prevailing-party status).