[EL] Texas and discriminatory purpose

[Justin Levitt]

On some of the three-judge court's findings, they acknowledged a 
distinct difference in the burden of proof, finding that Texas had not 
disproven discriminatory intent.  But on other findings, the court 
stated their conclusions far more affirmatively: "we are also persuaded 
by the totality of the evidence that the plan _was enacted with_ 
discriminatory intent"  (emphasis mine).

Even if there is no formal issue preclusion, I'd be surprised if the San 
Antonio federal court simply brushed off the DC court's findings.

Justin

On 6/25/2013 8:00 PM, Samuel Bagenstos wrote:
> Pretty sure a difference in the allocation of the burden of proof is a 
> recognized exception to issue preclusion, alas.
>
> Sent from my iPad
>
> On Jun 25, 2013, at 10:51 PM, "Pildes, Rick" 
> <pildesr at exchange.law.nyu.edu <mailto:pildesr at exchange.law.nyu.edu>> 
> wrote:
>
>> A three-judge federal court has found already that Texas' redistricting plan was motivated by a racially discriminatory purpose.  Whether that finding is right or wrong, I assume it is going to be collateral estoppel against the state in the immediate litigation that is going to ensue.  Unless that finding was affected by Section 5 -- because it resulted from the shifted burden of proof under Section 5 -- Texas' only recourse if it wants to put into effect the rejected plan would be to appeal to the Supreme Court.  I haven't reviewed the three-judge court opinion lately but I'd be interested to learn more about this issue from lawyers on the list who have.
>>   
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