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February 25, 1992



On February 5, 1992, plaintiff filed its Motion for Partial Summary Judgment (and for Oral Hearing and Expedited Consideration) with Supporting Legal Memorandum. On February 6, 1992, the court ordered defendant to submit a memorandum in response to plaintiff's motion. Defendant filed its Memorandum in Opposition to State of Texas' Motion for Partial Summary Judgment on February 13, 1992. Plaintiff filed a memorandum in reply on February 19, 1992.

 Oral argument on plaintiff's motion was held on February 21, 1992 before the district court comprised of three judges in accordance with 28 U.S.C. § 2284 and 42 U.S.C. § 1973c. At the conclusion of oral argument, the matter was deemed submitted.


 On September 20, 1991, the State of Texas filed its complaint seeking relief under section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c (1988) ("section 5"). Specifically, the State sought preclearance of its redistricting plans that had been passed by the legislature during the summer of 1991. Although four plans--governing elections to the Texas House, Texas Senate, Texas Board of Education, and United States Congress--were originally the subject of this suit for declaratory judgment under section 5, only one of these--the Texas Senate plan--remains at issue.

 Prior to the filing of this suit in September 1991, the State submitted its original Texas Senate plan--S.B. 31--to the Attorney General of the United States under the alternative preclearance procedures provided under section 5. According to the statute, the Attorney General had 60 days to object to any part of the proposed plan; if no objection were filed after 60 days, the plan would be precleared and the State would be free to begin implementing it. On the 59th day--October 7, 1991--the State notified the Attorney General that it was withdrawing S.B. 31 from consideration and submitting a different plan in its place.

 The new plan submitted on October 8, 1991 was the result of a settlement signed the previous day between the Texas Attorney General and private plaintiffs in a state court proceeding challenging the S.B. 31 plan. Quiroz v. Richards, C.A. No. C-4395-91-F (332d Jud. Dist., Hidalgo County). This same settlement was entered three days later in a parallel state court action. Mena v. Richards, C.A. No. C-454-91-F (332d Jud. Dist., Hidalgo County). The so-called "Quiroz/Mena settlement plan" governing elections to the Texas Senate was precleared by the Attorney General on November 18, 1991.

 On December 17, 1991, the settlement reached in both Quiroz and Mena was invalidated by the Texas Supreme Court on the grounds that the trial judge abused his discretion in accepting the settlement without first conducting an adversary proceeding. The State thereafter refrained from further implementation of the Quiroz/Mena settlement plan.

 On December 24, 1991, a three-judge federal court in the Western District of Texas--which had been convened to consider various constitutional and statutory challenges to the plans passed by the Texas legislature in the summer of 1991--entered judgment "to provide for a valid and equitable interim state legislative redistricting plan in the current circumstances in which no valid plan exists under federal law." Terrazas v. Slagle, Civil Nos. A-91-CA-425, -426, -428, Summary Opinion and Judgment at 23 (W.D. Tex. Dec. 24, 1991). The court ordered primary elections for the Texas Senate to be conducted pursuant to its own interim plan which it attached as an appendix to its ruling. This is the so-called Terrazas plan.

 Meanwhile, the Governor called the Texas legislature into special session to cure the procedural deficiencies of the Quiroz/Mena settlement plan by means of legislative enactment. On January 8, 1992, the legislature adopted a new Senate plan ("S.B. 1"), and the Governor signed it into law. It is undisputed that S.B. 1 is substantively identical to the Quiroz/Mena settlement plan that the Attorney General had precleared in November 1991.

 On January 9, 1992, the State filed a motion in the Terrazas court to vacate the December 24, 1991 order and to order, instead, the implementation of the newly ratified S.B. 1. On January 10, the court denied the motion, finding that S.B. 1 "fail[ed] to satisfy the Sec. 2 requirements of the Voting Rights Act." Terrazas v. Slagle, Civil Nos. A-91-CA-425, -426, Order and Judgment at 12-13 (W.D. Tex. Jan. 10, 1992). The State sought a stay of the December 24, 1991 order pending appeal, but the Supreme Court denied the stay on January 16, 1992. Richards v. Terrazas, 116 L. Ed. 2d 924, 112 S. Ct. 924 (1992). The state has appealed both the December 24, 1991 and the January 10, 1991 orders to the Supreme Court, Richards v. Terrazas, 60 U.S.L.W. 3554 (U.S. Feb. 18, 1991), and the case is currently pending. See Id. at 3560 (questions presented).

 On January 10, 1992, the State submitted S.B. 1 to the Attorney General for preclearance under section 5. The Attorney General's deadline for objecting to the proposed plan in March 9, 1992. Under the Terrazas plan, the primary election for the Texas Senate is scheduled for March 10, 1992. The candidate qualification period was closed on January 10, 1992, and the "early voting" procedure commenced on February 19, 1992.


 Under section 5 of the Voting Rights Act, no person may be deprived of a right to vote for failing to comply with a new enactment affecting voting procedure unless the new enactment has been precleared. The jurisdiction covered by the Voting Rights Act has two options: It may submit the proposed procedure to the Attorney General, who may prevent preclearance only by objecting to the proposal within 60 days, or it may seek a declaratory judgment in the U.S. District Court for the District of Columbia that the new enactment "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." 42 U.S.C. § 1973c (1988).

 Plaintiff's burden in a suit for declaratory judgment under section 5 is twofold: First, it must demonstrate that the redistricting plan does not lead to a retrogression in the position of racial minorities, Beer v. United States, 425 U.S. 130, 141, 47 L. Ed. 2d 629, 96 S. Ct. 1357 (1976); second, the State must demonstrate that the plan is free of a discriminatory purpose. Richmond v. United States, 422 U.S. 358, 362, 45 L. Ed. 2d 245, 95 S. Ct. 2296 (1975); Busbee v. Smith, 549 F. Supp. 494, 516 (D.D.C. 1982), aff'd mem., 459 U.S. 1166 (1983). Even if a change is ...

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