The state of Texas has asked the Supreme Court of the United States to set aside the $1 million plus in attorney’s fees awarded to the Texas Legislative Black Caucus, the Texas Latino Redistricting Task Force, the Texas State Conference of Branches of the NAACP, former state senator Wendy Davis, and others, who challenged Texas’ redistricting maps.
On June 18, 2014, U.S. District Court Judge Rosemary M. Collyer awarded $466,680.36 to the “Davis Intervenors” (Texas state senators and representatives from the Fort Worth, Texas area), $597,715.60 to the “Gonzales Intervenors” (a group of Hispanic and African-American voters), and $32,374.05 to the Texas State Conference of NAACP Branches.
The petition filed by the state of Texas in the U.S. Supreme Court, styled State of Texas v. Wendy Davis, et al., asks the Court to take the case and find that the award of attorney’s fees to these intervenors was unconstitutional.
In 2011, Texas filed a lawsuit seeking federal preclearance of its redistricting maps under a preclearance framework that would in 2013 be declared unconstitutional.
The State argues in its brief that the lower federal court awarded intervenors in the redistricting challenge attorney’s fees based on the Voting Rights Act’s unconstitutional preclearance framework which the Supreme Court set aside in the Shelby County v. Holder decision on June 25, 2013.
In that opinion decided by a 5-4 vote, the high court found that section 4(b) of the Voting Rights Act of 1965 was unconstitutional because the formula that determines which jurisdictions are required to submit to preclearance was based on data that was over four decades old. Jurisdictions subject to the preclearance provisions are those that have been determined to have a history of alleged discrimination in voting. The federal legislation was signed into law by President Lyndon B. Johnson.
On August 18, 2015, the U.S. Court of Appeals for the District of Columbia affirmed the order of the federal district court awarding the attorney’s fees to the intervenors. In order to reach this conclusion, the D.C. Circuit held that Shelby County did not take effect the day the Court decided it but only after the Clerk sent the lower court a certified copy of the judgment several weeks later. The state of Texas, through the Office of the Attorney General, is appealing.
In a statement obtained by Breitbart Texas, Texas Attorney General Ken Paxton said, “Supreme Court opinions have the binding effect of law the day they are issued. The lower courts were unjustified in compelling Texas to pay attorneys’ fees under a law that was invalidated as unconstitutional a full year earlier. We are asking the Court to step in to preserve its authority to establish the supreme law of the land.”
The attorney general argues that the Court in Shelby County held that this preclearance framework imposed unconstitutional “federalism costs” on states like Texas. Shelby County established that Texas’s redistricting plans were never subject to federal preclearance in the first place, argues the Texas Attorney General.
Texas is asking the Supreme Court to intervene to confirm that: (1) the Constitution does not permit attorneys’ fees to be awarded based on a lower-court victory predicated on an unconstitutional statute, and (2) lower courts cannot refuse to apply the Supreme Court’s precedents for nearly a month after they issue. The state argues that the intervenors could not be prevailing parties as of the moment Shelby County was decided because Shelby County nullified the preclearance framework. Lawyers urge that this separate question also warrants further review by the Supreme Court because the D.C. Circuit’s contrary decision creates a split of authority among the various federal courts of appeals that have correctly recognized that the high court’s opinions have binding effect in other pending cases the day they issue.
Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. She has served as a prosecutor and an associate judge in Texas. Follow her on Twitter@LanaShadwick2