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Texas Response to United States Motion to Compel

Texas Response to United States Motion to Compel

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Published by: vomeditor on Apr 27, 2012
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04/27/2012

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA 
STATE OF TEXAS Case No. 1:12-cv-00128RMC-DST-RLW
 Plaintiff 
,
 
vs.ERIC H. HOLDER, JR.,
 Defendant.
 
RESPONSE BY THE STATE OF TEXAS TO THE UNITED STATES’ ANDINTERVENORS’ MOTIONS TO CONTINUE TRIAL
Texas enacted Senate Bill 14 in May of 2011. It is now almost one full yearfrom the date of enactment, and Texas is still forbidden to implement that law— even though SB 14 is clearly constitutional under the Supreme Court’s ruling in
Crawford v. Marion County Election Board
, 553 U.S. 181 (2008), and even thoughno court has found that SB 14 conflicts with any provision of federal law or is likelyto violate federal law. A decision to postpone this trial, which would preclude Texasfrom implementing SB 14 in time for the November 2012 elections no matter howthis Court rules, will exacerbate section 5’s constitutionally problematic intrusionson state prerogatives.
See Northwest Austin Mun. Utility Dist. No. One v. Holder
,557 U.S. 193 (2009). Only the clearest showing that the current trial date isimpracticable could justify a decision from this Court to postpone the trial— 
Case 1:12-cv-00128-RMC-DST-RLW Document 95 Filed 04/27/12 Page 1 of 23
 
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especially when the Supreme Court has noted that the very existence of section 5’spreclearance regime presents serious constitutional questions. Yet the United States and intervenors do not make
any
showing—let alone aclear showing—that the current trial date is impracticable, much less impossible.Their briefs recite a litany of complaints about the progress of discovery andattempt to blame Texas at every turn for the current state of affairs. But on thequestion whether discovery can be completed in time for a trial scheduled to beginon July 9, 2012, the United States offers nothing but bald assertions and conclusorystatements.
See
United States Motion at 2–3, 15–16;
see also
Intervenors’ Motion at10. The United States never explains
which
discovery it will be unable to completeor
how
it will be “prejudiced” if the Court holds to the trial date of July 9. Vagueand unexplained allegations of “prejudice” and “impracticality” won’t suffice— especially when section 5’s preclearance requirement already pushes theconstitutional boundaries of federal power.It is no secret that the United States and the intervenors want to delayimplementation of SB 14 until after the November 2012 elections. They initiallyrequested a later trial date, knowing full well that such a late trial would forecloseany possibility of Texas implementing SB 14 in time for this year’s general election.Having lost the initial battle in this Court over the trial date, their fallback strategyis transparent: bombard the State with massive discovery requests (many of whichare only marginally related to the issues in this case), claim that discovery ismoving too slowly, and then insist that the trial date be moved. Given the
Case 1:12-cv-00128-RMC-DST-RLW Document 95 Filed 04/27/12 Page 2 of 23
 
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incentives that the defendants have to delay the trial, this Court cannot acceptmere assertions that the trial date of July 9, 2012 is no longer possible.In the end, the discussion in the defendants’ briefs is backward. Thedefendants
 first
need to establish that the trial cannot begin on July 9, 2012. Onlythen is it appropriate to consider whether the defendants or the State bearresponsibility for the (supposed) inability to maintain the trial date. Instead, boththe United States and the intervenors open their briefs by railing against the Stateof Texas and absolving themselves of any responsibility for their inability tocomplete discovery—apparently hoping that casting Texas in a bad light willpersuade this Court to vacate the current schedule without a clear showing thatdiscovery cannot be completed in time for a July 9 trial. Yet the parties can easilycomplete discovery and prepare for trial under the current timetable. In the Texasredistricting litigation, for example, the parties conducted 21 depositions in lessthan 10 days (even with multiple intervenors in that case); the parties to thislawsuit are equally capable of completing the depositions in a short window of time.Past discovery disputes do not justify a decision to postpone the trial; thedefendants must show specifically that the parties are incapable of completing
 future
discovery, and must show specifically how they are unable to prepare for atrial scheduled to begin on July 9, 2012. Nothing that the defendants have filedcomes close to making this showing.
Case 1:12-cv-00128-RMC-DST-RLW Document 95 Filed 04/27/12 Page 3 of 23

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