Bad Attitude Costs Texas in Fee Dispute

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Hey, I get it—sometimes when you win and you think the other side's position was bogus, it's hard not to get all smug and self-righteous.

But you really should try.

Not trying very hard—well, not trying at all—cost the State of Texas a lot of money on June 18, when a judge awarded other parties in a voting-rights case $1,096,770 in legal fees and costs, even though Texas had a decent argument that it was the prevailing party and so it should get paid. (McClatchy DC; thanks, Mark.)

In the U.S., normally each side has to pay its own fees, but some statutes say the "prevailing party" is entitled to recover fees from the loser. But exactly who "prevails" in a lawsuit is not always clear, and that was the case in this lawsuit, which involved Texas's plans to redraw its voting districts. (Skip down three paragraphs or so if that could not sound more boring.)

Under the Voting Rights Act—Still here? Nerd. Under the Voting Rights Act, Texas was one of the states that had to get federal "preclearance" for redistricting because of the history of discrimination there. Texas decided to sue for a declaration that its plans were okay, and the feds opposed. Other parties (Democrats, basically) intervened because they also wanted to oppose. Texas mostly lost in the district court, and it appealed. In the meantime, though, it came up with new plans that were more likely to comply with the court's order.

One day before the new plans became law, the U.S. Supreme Court held in Shelby County that all this VRA preclearance stuff was unconstitutional—or had become unconstitutional at some point over the last 50 years, anyway, discrimination now being a thing of the past, you see. Told you so, said Texas, and moved to dismiss the still-pending case involving its first set of plans.

Okay, so who "prevailed" in that mess? The Democratic groups said they did, because Texas lost the first ruling and changed its plans, just like they wanted it to, and they filed motions seeking over $1 million in fees. Texas did not agree.

It did not agree so much, in fact, that it didn't even bother to file responses. Or, rather, it did file something but it couldn't bring itself to call the document a "response." It filed this three-page thing it called an "Advisory," saying that not only did Shelby County mean Texas won, it meant Texas had essentially always been right because the law was unconstitutional all along (an "affront" and a "nullity"), and the case never should have been brought. That's wrong for a couple of reasons, I think, but Texas was so sure of itself that it didn't bother to say much of anything else. 

As the judge's decision made clear, this was a Bad Idea.

In fact, she said, it presented "a case study in how not to respond to a motion for attorney fees and costs." While Texas might have lost anyway, to be honest, the attitude didn't help it, and at a minimum it waived any argument that the amount of fees claimed was unreasonable because it said nothing about that at all.

Granted, it was probably somewhat satisfying to file that "Advisory," but you have to wonder how much that satisfaction was worth.