On July 19, 2011, the state of Texas filed suit against the United States in the U.S. District Court for the District of Columbia, under Section 5 of the Voting Rights Act. The state asked for a declaratory judgment, alleging that the Department of Justice inappropriately declared Texas's new districting plan to be retrogressive (that is, discriminatory, because it diluted minority voting power). Arguments focused primarily on the demographics of the state of Texas and its new districting map. On November 8, 2011, the District Court (Judge Thomas Griffith) denied Texas's motion for summary judgment, holding that Texas improperly relied solely on demographic data in formulating its plans and that there were genuine issues of material fact. 831 F. Supp. 2d 244.

On August 28, 2012, the District Court held that Texas had not met its burden of showing that the new U.S. Congressional and State House plans were not retrogressive or its burden of proving that its U.S. Congressional and State Senate plans were not enacted with a discriminatory purpose, and therefore denied declaratory judgment. 887 F. Supp. 2d 133. Texas sought review in the Supreme Court, and the case was held while the constitutionality of the Voting Rights Act was under review in Shelby County v. Holder.

On June 25, 2013, the Supreme Court held in the Shelby County case that the Voting Rights Act was unconstitutional in part -- striking down Section 4 of the Act, the "coverage" provision, which controlled which jurisdictions were obligated to seek DOJ preclearance of voting-related changes. 570 U.S. 529. The next day, the Court vacated the opinion in this case and remanded the case to the District Court for the District of Columbia. 570 U.S. 928.

On July 3, 2013, Texas moved to dismiss as moot all claims brought in its original complaint. It advanced two arguments in support of dismissal. First, on June 23, 2013, while Texas's appeal was pending and before the Supreme Court had announced its decision in Shelby County, the Texas legislature adopted a new set of redistricting plans that replaced those challenged in this case. Second, Shelby County (which held the VRA's coverage formula unconstitutional) had removed Texas from the preclearance regime of Section 5. Texas argued that these two factors had mooted it claims. On December 3, 2013, a three-judge panel for the District Court for the District of Columbia (Judge Thomas B. Griffith writing for the Court) agreed that the controversy had been mooted, and dismissed all claims. Mem. & Order, Dec. 3, 2013.

On December 17, 2013, several parties (individual voters, elected state representatives, and civil rights advocacy groups) who had intervened as defendants earlier in the litigation moved for attorney fees and costs totaling $1,096,770.01. The intervenors argued that they were prevailing parties and thus entitled to fees and costs under the VRA-specifically, under § 1973l(e) of the VRA, 42 U.S.C. § 1973l(e), and subsection (b) of 42 U.S.C. § 1988. These sections allow courts to, at their discretion, award the prevailing party reasonable fees and costs if the underlying action was to enforce the voting guarantees of the Fourteenth or Fifteenth Amendment of the United States Constitution.

On June 18, 2014, the District Court (Judge Rosemary M. Collyer) granted the intervenors' motion for attorney fees and costs in full. Texas v. United States, Civil Action No. 11-1303 (RMC), 2014 WL 2758597, at *11 (D.D.C. June 18, 2014). Describing the issue as a "case study in how not to respond to a motion for attorney fees and costs," id. at *1, Judge Rosemary chastised Texas for failing to respond-other than by means of a three-page "Advisory" filing-to the intervenors' motion. Finding that Texas's "Advisory" filing presented no substantive legal opposition, the Court thus granted the motion.

On July 16, 2014, Texas appealed the order granting attorney fees to the United States Court of Appeals for the District of Columbia Circuit. The June 18 order was stayed pending this appeal.

On August 18, 2015, the Judge Patricia A. Millett of the United States Court of Appeals for the District of Columbia Circuit issued an opinion affirming the District Court’s fee award. Judge Millett found that Texas failed to follow the District Court’s rules for responding to motions for attorneys’ fees and did not challenge the District Court’s use of its rules on appeal. Judge Millett proceeded to identify numerous flaws in Texas’ argument that the Supreme Court’s decision in Shelby County made the intervenors ineligible for attorneys’ fees. Concluding that “Texas gets no second bite at the apple now” after its procedural missteps, Judge Millett affirmed the District Court’s fee award. 798 F.3d 1108.

After the Court of Appeals issued its opinion, the intervenors moved for additional attorneys’ fees to cover the costs of appeal, and Texas failed to secure Supreme Court review. 136 S. Ct. 981. On March 17, 2016, the Court of Appeals remanded the intervenor’s motion for additional attorneys’ fees, now augmented by the costs of opposing Supreme Court review, to the District Court for fact-finding.

After almost a year of litigation over the additional attorneys’ fees, Judge Collyer issued an order and opinion granting the intervenors most of their requested fees on March 30, 2017. Judge Collyer noted that prevailing parties challenging voting plans or procedures are entitled to attorneys’ fees under 42 U.S.C. § 1988(b). The parties disputed whether undetermined fees should be calculated using the intervenors’ attorneys’ rates from private practice or the more conservative Laffey Matrix, a “commonly used” tool in the D.C. Circuit. Judge Collyer selected a generous form of the Laffey Matrix as most appropriate given the skill of the intervenors’ attorneys and the complexity of the litigation but reduced one fee award by 7.6 hours for work on a motion that was never filed.

The case is now closed.

Jonathan Forman - 06/30/2013
Greg in den Berken - 10/27/2014
Timothy Leake - 11/08/2018


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