UPDATE: On Nov. 10, the 5th Circuit issued a second order extending its temporary pause of the lower court’s decision until the entire 5th Circuit determines whether it will rehear the case. For the time being, this means that Galveston County does not need to implement new commissioners court districts.
WASHINGTON, D.C. — Today, the 5th U.S. Circuit Court of Appeals called for the reconsideration of its prior precedent concerning Section 2 of the Voting Rights Act (VRA), but nevertheless affirmed that Galveston County, Texas’ commissioners court districts violate Section 2 by diluting Black and Latino voting power.
In particular, a unanimous three-judge panel — consisting of judges appointed by George W. Bush, George H.W. Bush and Ronald Reagan — held that the entire 5th Circuit should reconsider and overturn established precedent that allows distinct minority communities — such as Black and Latino voters — to be “aggregated,” or combined, for the purposes of Section 2 vote dilution claims.
Section 2 claims are often brought by litigants as the basis for legal challenges to racially discriminatory maps and voting practices.
Today’s order follows a trial decision holding that Galveston County engaged in a “stark and jarring” VRA violation.
Just last month, a district court judge found that Galveston County violated Section 2 when it dismantled the county’s sole majority-minority commissioners court precinct for the commissioners court, the county’s primary governing body. Under the longstanding precinct, Black and Latino residents previously enjoyed the opportunity to elect their candidate of choice for three decades. The ruling came as part of a consolidated federal lawsuit brought by voters, civil rights organizations and the U.S. Department of Justice that went to trial in early August.
As the district court ruling explained, Black and Latino voters in Galveston County — who account for nearly 40% of the population — lost their ability to elect their preferred candidate in any one of Galveston’s four commissioners court precincts following the elimination of the county’s sole majority-minority district. The judge who authored the opinion striking down the map — a Trump appointee serving on the U.S. District Court for the Southern District of Texas — referred to the county’s decision to “extinguish [its] Black and Latino communities’ voice on its commissioners court during 2021’s redistricting” as “stunning.”
Although neither the county’s Black or Latino populations are large enough to individually constitute a majority in a particular district, the two communities in aggregate formed a politically cohesive coalition of minority voters that is protected under Section 2. In the case of Galveston, the county’s Black and Latino voters together prefer candidates whom the county’s white majority would never elect.
Prior to the U.S. Supreme Court’s 2013 decision in Shelby County v. Holder, the county — which has a documented history of racial discrimination — was subject to federal oversight to ensure that its redistricting plans did not harm minority voters.
The 5th Circuit panel expressed its clear intent to overturn prior Section 2 precedent.
In today’s order, the three-judge panel acknowledged that although it is bound by the 5th Circuit’s Section 2 precedent allowing for so-called “minority-coalition claims,” it believes that prior decisions permitting such claims are “wrong as a matter of law.” The 5th Circuit “precedent permitting aggregation should be overturned…We therefore call for this case to be reheard en banc,” the order reads. In legal terms, rehearing en banc means that a case will be reheard by the entire panel of judges who sit on the court.
According to the panel’s ruling, there is a split among various federal circuits when it comes to minority-coalition Section 2 claims: While the 6th U.S. Circuit Court of Appeals rejected them, the 11th U.S. Circuit Court of Appeals expressly authorized them.
At the conclusion of the order, the panel noted that the district court “did not clearly err” when it found that the county’s redistricting plan violated Section 2. The judges also rejected the county’s constitutional challenge to Section 2, writing that “Galveston County has failed to show that Section 2 is unconstitutional under existing precedent, especially in light of the Supreme Court’s recent decision in Allen v. Milligan.”
For the time being, today’s order means that Galveston County will need to implement VRA-compliant maps for the upcoming 2024 elections. However, in the coming weeks, the 5th Circuit will internally vote on whether the court’s entire slate of judges should rehear the case en banc, indicating that the future trajectory of the case — as well as the viability of minority-coalition Section 2 claims in the 5th Circuit more broadly — remain uncertain.
Today’s order represents the 5th Circuit’s latest effort to undermine voting rights protections and pro-voting court rulings.
In a post on X (formerly known as Twitter) responding to the 5th Circuit’s ruling, Janai Nelson, president of the NAACP Legal Defense Fund wrote that it is “[e]xtremely dangerous precedent for a federal appellate court panel to invite en banc review to do what it admits would be a violation of legal precedent and further narrow the rights of voter of color in Texas.”
Today’s ruling follows a series of unprecedented moves by the 5th Circuit — the most conservative appellate court in the country — in the realm of voting rights. Last month, the 5th Circuit effectively delayed Louisiana’s path to implementing a VRA-compliant congressional map after granting a request to cancel a lower court hearing to decide how the state would remedy its Section 2 violation. And in August, the 5th Circuit vacated (or voided) a monumental decision striking down Mississippi’s Jim Crow-era felony disenfranchisement provision and agreed to rehear the case en banc.