How the 5th Circuit Is Dismantling Democracy

In the past nine months alone, the 5th U.S. Circuit Court of Appeals has handed down seven anti-democratic rulings affecting voters in Louisiana, Mississippi and Texas — the trio of states that fall within the circuit’s jurisdiction. 

Just two weeks ago, a three-judge panel of 5th Circuit judges unanimously greenlit the creation of an unelected court in Mississippi’s majority-Black capital of Jackson, with a judge and prosecutors appointed by white state officials. 

Although the 5th Circuit has received notoriety for being the most conservative federal appeals court in the country, its sweeping and destructive democracy-related decisions suggest that it has become more of a right-wing activist court. As Rakim Brooks, president of Alliance for Justice, explained to Democracy Docket, “the Fifth Circuit is demolishing the rule of law as we know it…From reproductive rights to gun safety to democracy itself, [t]hese judges are trying to force an extreme agenda not only on the states they serve, but on all of us.”  

With nearly 75% of the 5th Circuit’s 26-judge bench occupied by Republican-appointed judges — six of whom are Trump appointees — right-wing litigants are continually experimenting, and often prevailing, in the 5th Circuit’s laboratory of anti-democratic jurisprudence. 

In a spate of recent decisions, the infamously conservative federal appeals court has obstructed the implementation of fair maps, upheld voter suppression laws and agreed to reconsider its own established precedent under Section 2 of the Voting Rights Act (VRA) that protects coalitions of minority voters from discriminatory redistricting plans. 

In an extraordinary step, the 5th Circuit effectively delayed the timeline for Louisiana to enact a congressional map that fairly represents Black voters. 

After upholding Section 2 of the VRA this past summer in Allen v. Milligan, the U.S. Supreme Court reinstated a district court’s order in a separate Section 2 lawsuit concerning Louisiana’s congressional districts. That preliminary injunction order — issued in June 2022 — blocked Louisiana’s congressional districts for likely diluting Black voting power and required the state to adopt a map that includes a second majority-minority district. 

With the reinstallation of its order, the district court scheduled an October 2023 hearing to address how Louisiana would remedy its Voting Rights Act violation. But in an effort to delay the implementation of fair districts, Republican state officials requested that the district court cancel its scheduled hearing and instead schedule a full trial on the merits. After the district court promptly denied the request, the state asked the 5th Circuit to step in.

Just five days before the district court hearing was set to take place, two of the 5th Circuit’s most unabashedly right-wing judges — Reagan-appointed Edith Jones and Trump-appointed James Ho — yielded to Louisiana Republicans’ eleventh-hour entreaty. In particular, the 2-1 majority granted Louisiana’s petition for a writ of mandamus — an extraordinary and rarely-utilized form of judicial relief — to compel the district court to cancel its remedial hearing. Indeed, the U.S. Supreme Court has referred to a writ of mandamus as “one of the most potent weapons in the judicial arsenal” reserved for situations in which a party has “no other adequate means to attain the relief he desires.”

In a dissenting opinion, Judge Stephen Higginsion — one of the 5th Circuit’s two Obama appointees — described how his colleagues’ order transgressed the ordinary bounds of judicial review: “[S]ettled caselaw confirms that mandamus is not a tool to manage a district court’s docket; nor can mandamus substitute for appeal.” 

What’s more, the ultra-conservative 2-1 majority issued the writ of mandamus despite the fact that a separate 5th Circuit panel already had jurisdiction over Louisiana’s appeal of the June 2022 order mandating a Section 2-compliant congressional map. Fortunately, that panel — composed of a more moderate slate of judges — later affirmed Louisiana’s likely VRA violation and set a January 2024 deadline for the state to enact a new congressional map. 

Although the path to a fair Louisiana congressional map remains open, the alacrity with which a duo of ultra-conservative 5th Circuit judges accepted Louisiana Republicans’ attempted delay tactics raises cause for concern. “Time and again, the Fifth Circuit acts as a laboratory for conservative interests, pushing the boundaries of the law to test what the U.S. Supreme Court will tolerate [and ruling] in ways that make it harder for people to vote and achieve fair representation, especially low-income Black communities,” Brooks said. 

The 5th Circuit asked to overturn its own Voting Rights Act precedent, consequently depriving Galveston County, Texas voters of a fair map for 2024.

In another aberrant 2023 ruling, a unanimous 5th Circuit panel affirmed a district court decision finding that Galveston County, Texas engaged in a “stark” and “jarring” VRA violation when it eliminated the county governing body’s longstanding Black and Latino-minority coalition district. However, in the very same ruling, the panel called for the reconsideration of established 5th Circuit Voting Rights Act precedent allowing for distinct minority communities — such as Black and Latino voters — to be aggregated for the purposes of Section 2 vote dilution claims.

In its order, the panel brazenly acknowledged that although it is bound by the 5th Circuit’s Section 2 precedent permitting so-called “minority-coalition claims,” it believes that prior decisions in that area are “wrong as a matter of law.” The panel went so far as to explicitly state that “precedent permitting [minority-coalition claims] should be overturned” and concluded that the 5th Circuit should rehear the case en banc, which it agreed to do just over two weeks later. (When a federal circuit court rehears a case en banc, the circuit’s entire panel of active judges — as opposed to the typical three-judge panel — reviews the case.) 

In agreeing to rehear the case — known as Petteway v. Galveston County — the 5th Circuit concurrently voided the panel’s prior decision affirming Galveston’s VRA violation under existing Section 2 precedent. The court did so as a result of a 5th Circuit rule that automatically invalidates a previous three-judge panel decision if a majority of the entire court agrees to rehear a case en banc. As exemplified by the Galveston County case, this procedure leaves the court’s occasional pro-democracy victories especially vulnerable to being swiftly invalidated.

The 5th Circuit’s quest to eviscerate multiracial democracy did not stop there: In early December 2023, the court’s full bench put the nail in the coffin for a VRA-compliant Galveston County map, ruling 11-6 to pause the trial court’s order that required the adoption of legal districts for 2024. The U.S. Supreme later refused to lift the 5th Circuit’s pause, meaning that Galveston County’s Black and Latino voters will lose their decades-long representation on the county’s governing body in 2024, despite accounting for nearly 40% of the total population.  

Relying on the Purcell principle — which prohibits changes to maps or voting rules too close to Election Day — the 5th Circuit majority paused the district court’s order on the basis that it was too close to Texas’ candidate filing deadline to require the implementation of new districts. As the University of Texas Austin law professor Steve Vladeck pointed out, “Purcell is about confusion in the run up to Election Day…But Oldham [the Trump-appointed judge who authored the majority opinion] extends Purcell to the candidate filing deadline without bothering to note that that’s … not the same thing.”

In fact, at the time the order was issued, Texas’ March 5, 2024 primary election date was over three months away and the state’s general election was nearly one year away. Vladeck further underscored the worrisome future application of Oldham’s unjustified expansion of Purcell: “Petteway’s implications for the upcoming 2024 election cycle are pretty staggering. If lower courts are precluded from intervening in elections as much as three months prior to the primary…then we might as well just stop doing federal election litigation until the 2024 elections are over.”

The 11-6 majority concluded its order by stating Galveston County “has shown a likelihood of success” in arguing that minority-coalition claims are impermissible, portending its strong likelihood of overturning existing Voting Rights Act precedent. The entire 5th Circuit is scheduled to rehear the case the week of May 13, 2024.

The entire 5th Circuit agreed to rehear a panel decision striking down Mississippi’s felony disenfranchisement provision. 

In a stunning departure from the 5th Circuit’s characteristically anti-democratic decisions, a 2-1 panel struck down a Jim Crow-era provision of the Mississippi Constitution that permanently disenfranchises Mississippians with certain felony convictions. The state constitutional provision at issue, which was enacted in 1890 with the express purpose of denying voting rights to Black men, currently disenfranchises nearly 11% of the state’s voting age population and disproportionately burdens Black Mississippians.  

The majority — including Obama-appointed Judge James Dennis and Carter-appointed Judge Carolyn King — held that the Mississippi Constitution’s permanent felony disenfranchisement provision violates the 8th Amendment’s prohibition on cruel and unusual punishment:

Permanent denial of the franchise…is an exceptionally severe penalty, constituting nothing short of the denial of the democratic core of American citizenship. It is an especially cruel penalty as applied to those whom the justice system has already deemed to have completed all terms of their sentences…These individuals, despite having satisfied their debt to society, are precluded from ever fully participating in civic life. Indeed, they are excluded from the most essential feature and expression of citizenship in a democracy—voting

However, this stunning voting rights victory — which had the potential to re-enfranchise tens of thousands of Mississippians — was ephemeral, lasting for only 55 days. In the month following the ruling, the 5th Circuit granted state officials’ request for the case to be reheard en banc, thereby nullifying the panel’s decision. This came as no surprise, given that nearly a year earlier, the entire 5th Circuit upheld the Jim Crow-era provision in a different case, ruling that it had been “cured” of any “racist taint.” The entire 5th Circuit bench will rehear the case at oral argument on Jan. 23, 2024.

Republican litigants in other cases are trying to take advantage of the 5th Circuit’s ultra-conservative composition by exploiting appellate procedure. 

The Mississippi ruling is just one among a handful of anomalously pro-democracy 5th Circuit rulings that Republican litigants have asked the court to rehear en banc. Keenly aware of the 5th Circuit’s reliably right-wing track record, Republican state officials have become emboldened in seeking to overturn more moderate panel decisions that do not suit their partisan ends. 

Louisiana Republicans in particular, have continually exploited the special procedure of rehearing en banc in an effort to reverse pro-democracy rulings. In a recent petition, the state asked the entire 5th Circuit to rehear a decision upholding a Voting Rights Act-based 1992 consent decree ensuring that Black Louisianans have an equal opportunity to elect their preferred candidates to the state Supreme Court. The court is yet to rule on the state’s rehearing petition. 

In the ongoing case concerning Louisiana’s congressional map, the state asked the entire 5th Circuit to overturn a panel decision affirming that private plaintiffs — not just the U.S. attorney general — can bring lawsuits under Section 2 of the Voting Rights Act. In a rare win for voters, the 5th Circuit denied Louisiana’s request.

Although the 5th Circuit’s right-wing majority is deeply entrenched, pro-democracy judicial confirmations could improve the court’s future trajectory.

For the foreseeable future, the 5th Circuit’s right-wing bench is here to stay. And for as long as it remains, right-wing litigants will continue to engage in judicial gamesmanship, aided by an extremely conservative cohort of judges who will do their partisan bidding. 

In the meantime, “it’s vital to prioritize filling all of the vacancies on the federal bench, especially if any should open on the Fifth Circuit, [with] more qualified movement lawyers to resist and counter their attacks on the rule of law,” Brooks emphasized. In a promising step, the U.S. Senate confirmed Biden-nominated Judge Irma Carrillo Ramirez to the 5th Circuit in December 2023, making her the circuit’s first ever Latina judge. 

According to Brooks, reforms are also necessary to rein in the 5th Circuit, including the creation of “new ethics accountability measures for the Supreme Court when they take up these wild cases from the Fifth Circuit.” 

“We don’t yet know the total…harm this court can do, but there are steps we can take to protect ourselves and prevent other courts from being similarly coopted [by] extremism.”