The state of Texas, one of the most energetic opponents of a key part of the federal Voting Rights Act, has turned what it was sure was a Supreme Court victory against that law into a legal defeat that will cost it more than $1 million. That was the result of a ruling by a federal appeals court on Tuesday, interpreting what it means when the Justices send a case back to a lower court for a new look.

The unanimous ruling by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit will translate into a sizable legal bill for Texas to cover what opponents in a major election law case spent for their attorneys’ work.

The panel sharply accused the state’s lawyers of failing to obey court rules, echoing an earlier comment by a federal trial court judge that “this matter presents a case study in how not to respond to a motion for attorney fees and costs.”

This dispute turns mainly on differing interpretations of a Supreme Court order, issued June 27, 2013, as a follow-up to its earlier ruling in Shelby County v. Holder, striking down a major provision of the 1965 voting rights law. The Shelby County decision nullified the formula that Congress had given for requiring some states — including Texas — to obtain the approval of federal officials or a federal court in Washington for any new state law on voting or elections. As a result, that clearance requirement could no longer be enforced.

Texas was one of a number of states covered by the requirement that supported the challenge to it in the Shelby County case and other cases.

At that time, Texas had a separate appeal pending before the Justices in a different case, seeking to challenge a lower federal court ruling in 2012 denying “preclearance” for new redistricting maps that the Texas legislature had drawn for its state legislature and for its delegation in the U.S. House of Representatives.

In its post-Shelby County order in the Texas redistricting case, the Justices told that lower court to reconsider, taking into account the decision limiting the Voting Rights Act’s scope.

With that case back in district court in Washington, Texas voters and officeholders who had joined in the case against the redistricting maps claimed that they had won that case because the maps had been struck down, making them “prevailing parties.” Under federal civil rights law, the winners of a case are entitled to seek to have their attorney’s fees paid by the losing side.

Texas officials, sure that the state, rather than the challengers, had won in the redistricting case on the basis of the demise of the clearance requirement and the Justices’ June 2013 order, told the district court that “the state does not intend to respond [on the fees issue] unless requested to do so by the court.” It offered no arguments to counter the size of the attorney fee claims, and limited its legal points to summary statements in a three-page “advisory.”

“The federal statute purporting to require preclearance was a nullity, and the entire exercise of subjecting Texas to preclearance was an unconstitutional imposition on the state,” the state argued. “Texas never should have been forced to pursue this litigation before implementing its legislatively enacted redistricting plans.”

The challengers who had entered that case, the filing added, “cannot be the ‘prevailing party’ for their role in aggravating the unconstitutional burden of preclearance and delaying the state’s reapportionment efforts following the 2010 census.”

The district court’s denial of preclearance no longer had any legal meaning, the state’s lawyers asserted, citing the Supreme Court order returning that case to the district court.

In June 2014, U.S. District Judge Rosemary M. Collyer in Washington ruled that the three groups of challengers were entitled to recover their attorney fees expenses from Texas. The filing by the state’s lawyers, the judge wrote, “fails to recognize that the limited holding of Shelby County did not resolve the issues here.”

It was not the court’s duty, the judge added, to ask Texas to come up with some reasons to oppose the attorney fee requested. “Texas has had every chance to oppose the fees and costs that the applicants seek,” she added, but “it instead opted to file a three-page advisory that ignored every argument of applicants except the applicability of Shelby County.”

Under local court rules, the judge found, Texas had forfeited its right to oppose the fee award because of its failure to make an argument against it. Finding the voters and officeholders to have prevailed, she awarded one group $597,715.60 in fee recovery, another group $466,680.36, and the third $32,374.05 — for a total just under $1.1 million. Those amounts, the judge ruled, were reasonable.

At Texas’s request, Judge Collyer put her order on hold so that the state could appeal.

That appeal ended on Tuesday, with the D.C. Circuit upholding the fee awards, concluding that the Supreme Court’s June 2013 order did not settle the Texas redistricting case and did not resolve who would be the “prevailing party” in that case.

The Justices’ order, the panel said, was like many others in similar cases. All that the Court meant by that action, the decision added, was that there had been intervening developments that might suggest a need for the lower court to reconsider. This was not a ruling on the redistricting dispute, according to the panel, and it added: “It certainly did not declare Texas the victor.”

The ruling was written by Circuit Judge Patricia A. Millett, and it was joined by Circuit Judge Cornelia T.L. Pillard and Senior Circuit Judge David B. Sentelle.

Texas now has the option of asking the full D.C. Circuit to reconsider the case, and will also have a right to seek Supreme Court review.

Recommended Citation: Lyle Denniston, Texas lost when it thought it had won. The cost: $1 million, SCOTUSblog (Aug. 18, 2015, 8:50 PM), https://www.scotusblog.com/2015/08/texas-lost-when-it-thought-it-had-won-the-cost-1-million/