Veasey v. Abbott (248 F. Supp. 3d 833, 2017)

NELVA GONZALES RAMOS, UNITED STATES DISTRICT JUDGE

ORDER ON GOVERNMENT’S MOTION FOR VOLUNTARY DISMISSAL OF DISCRIMINATORY PURPOSE CLAIM AND ASSERTION OF MOOTNESS

Before the Court is “United States’s Motion for Voluntary Dismissal of Discriminatory Purpose Claim Without Prejudice” (D.E. 1001). ¡ Defendants have not asserted any objection to the relief sought in the motion and the “Private Plaintiffs take no position” on it. D,E. 1010, p. 5. However, the Government’s stated reasoning for its dismissal, at least in part, is that (1) the discriminatory purpose claim is moot due to pending. Texas legislation and (2) the Fifth Circuit directed this Court to forbear a decision on discriminatory purpose until after the end of the current Texas legislative session.

On February 28, 2017, the Court ordered briefing on the issues of mootness and forbearance, and the briefs have been filed. D.E. 1010, 1012, 1015, 1018, 1019. For the reasons set out below, the Court HOLDS that the Fifth Circuit did. not direct this Court to withhold a decision on the discriminatory purpose claim and that the claim is not, and will not be, moot as a result qf pending or future legislation. Nonetheless, the, Court GRANTS the motion to dismiss the Government’s claim as unopposed.

DISCUSSION

A. The Fifth Circuit’s Directive Did Not Require Forbearance.

The Fifth Circuit majority’s remand of the discriminatory intent finding came with clear instructions issued in the conclusion of jts initial analysis: (1) this Court was to receive no new evidence; (2) this Court could, but was not required to, entertain additional oral arguments; (3) this Court’s first priority was to fashion interim relief for the discriminatory effects claim, to be imposed prior to the November* 2016 'election; (4) it was unnecessary for this Court to make its new finding on discriminatory intent prior to the November 2016 election; and (5) this Court was not to impose any relief based on any decision regarding discriminatory intent until after the November 2016 election. Veasey v. Abbott, 830 F.3d 216, 242-43 (5th Cir. 2016). These instructions were repeated at the conclusion of the majority opinion. Id. at 272.

In the wrap-up discussion of the discriminatory intent claim, the majority opinion expressly acknowledged that this Court was 'permitted to make its new finding prior to the November 2016 election so long as no remedy on that basis would be imposed until after the election. Id. While the opinion also states that this Court’s reexamination of the discriminatory purpose claim should be done, “bearing in mind the effect any interim legislative action taken with respect to SB 14 may have,” that statement was made in connection with interim relief and should not be read out of context. Additional legislative action will certainly inform the type of relief warranted with respect to any violation Plaintiffs demonstrate.

B. The Question of Discriminatory Intent Will Not Be Mooted by New Legislation.

The Supreme Court has placed the difficult burden of demonstrating mootness squarely upon the party who asserts the defense.

[T]he standard we have announced for determining whether a case has been mooted 'by the defendant’s voluntary conduct is stringent: “A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” The “heavy burden of persua[ding]” the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (quoting United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968)).

It is well-settled that new legislation'does not ipso fa