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Northeast Times | October 28, 2021

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Attorney General Asks SCOTUS to Declare Redistricting Attorneys’ Fees Award Unconstitutional

Attorney General Asks SCOTUS to Declare Redistricting Attorneys’ Fees Award Unconstitutional

The Texas Attorney General’s Office today petitioned the U.S. Supreme Court in State of Texas v. Wendy Davis, et al. to review and hold unconstitutional an award of attorneys’ fees to parties who challenged Texas’s redistricting maps. The lower courts awarded these parties fees based on the Voting Rights Act’s unconstitutional preclearance framework, which the Supreme Court nullified in 2013 in Shelby County v. Holder.  

“Supreme Court opinions have the binding effect of law the day they are issued,” Texas Attorney General Ken Paxton said. “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.”

In 2011, Texas filed a lawsuit seeking federal preclearance of its redistricting maps under the unconstitutional preclearance framework. While the case was pending at the Supreme Court, the Court in Shelby County held that this preclearance framework imposed unconstitutional “federalism costs” on states like Texas. Shelby County therefore established that Texas’s redistricting plans were never subject to federal preclearance in the first place.

A year after Shelby County was decided, a district court awarded attorneys’ fees to several parties opposing Texas in the preclearance lawsuit. The D.C. Circuit affirmed that ruling, holding that Shelby County did not take effect the day the Supreme Court decided it – but only after the clerk sent the lower court a certified copy of the judgment several weeks later. Contrary to the D.C. Circuit’s conclusion, numerous other federal courts of appeals and state high courts recognize that Supreme Court decisions are immediately binding precedent.

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.

To view the brief filed today in the U.S. Supreme Court, please visit: https://www.texasattorneygeneral.gov/files/epress/Texas_v_Davis_Petition_for_a_Writ_of_Certiorari.pdf.