Though Shelby County did not make clear that the 14th Amendment’s “Congruent and Proportional” standard applies to Section 2 of the 15th Amendment, in its most recent filings, Texas has taken the position that this exacting standard applies.

First, this Court lacks jurisdiction to consider a bail-in remedy because the plaintiffs’ claims for declaratory and injunctive relief against the 2011 plans are moot. Second, section 3(c) does not permit a bail-in remedy because no violations of the Fourteenth and Fifteenth Amendments have occurred as a result of Texas’s 2011 redistricting plans. Third, even if violations occurred, they bear no resemblance to the “pervasive,” “flagrant,” “widespread,” and “rampant” discrimination that originally justified preclearance in 1965. See Shelby County, 133 S.Ct at 2629. Under Shelby County, bail-in could be a congruent and proportional remedy for intentional discrimination, but only in response to the kind of ever-changing discriminatory machinations that gave rise to the preclearance regime in the first place. Because nothing remotely like that has occurred in modern-day Texas, this Court cannot impose preclearance on Texas while remaining faithful to Shelby County and the constitutional principles on which it relies.

Of course, the phrase “congruence and proportional” appears nowhere in Shelby (that’s why the brief lacks any cites for those points). Texas assumed, or perhaps inferred, that this was the appropriate standard.

Finally, even if this Court concludes that the 2011 maps were the product of intentional racial discrimination, the remedy of bail-in would not be congruent and proportional under Shelby County. Under Shelby County, preclearance remedies must be reserved for situations involving “‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination” that cannot be remedied through normal litigation. See Shelby County, 133 S. Ct. at 2629– 30. The very same constitutional scrutiny applied by the Supreme Court to the legislative reauthorization of the section 4 coverage formula must be applied to any request for judicial bail-in under section 3(c).

In other words, even if Texas has violated the 14th or 15th Amendments, those violations would not warrant preclearance under Section 3, as they are not “congruent and proportional” to the ends the Reconstruction Amendments aim to address. The same standards must govern both sections 4 and 3.

Texas also distinguishes away one of the earlier Section 3 cases from Arkansas, as abrogated by NAMUDNO and Shelby County.

The Jeffers court’s reliance on local constitutional violations to bail in an entire state cannot be justified after Northwest Austin and Shelby County, which require a preclearance remedy that is congruent and proportional to the constitutional violations. Indeed, any example of section 3(c) bail-in that predates Shelby County is of little use to this Court because past courts applying section 3(c) were not compelled by Supreme Court precedent—as this Court is—to subject any bail-in request to the rigorous congruence-and-proportionality analysis that the Supreme Court applied to section 4’s coverage formula. See Shelby County, 133 S. Ct. at 2627–31.

In other words, we are in a brave new world, and old precedents on Section 3 do not apply.