WASHINGTON, D.C. — The entire 5th U.S. Circuit Court of Appeals will reconsider its established Voting Rights Act (VRA) precedent that permits distinct minority communities — such as Black and Latino voters — to be combined for the purposes of Section 2 vote dilution claims.
This move comes as 5th Circuit issued an order earlier today agreeing to rehear a consolidated redistricting case challenging Galveston County, Texas’ commissioners court districts under Section 2 of the VRA, which prohibits racially discriminatory redistricting plans. In agreeing to rehear the case, the notoriously conservative court concurrently voided a decision issued on Nov. 10 by a three-judge 5th Circuit panel affirming that Galveston County’s districts illegally diluted Black and Latino voting power.
Although the panel’s Nov. 10 ruling affirmed Galveston County’s VRA violation, it nonetheless called for reconsideration of the court’s prior Section 2 precedent.
In an October 2023 ruling, a Trump-appointed district court judge found that Black and Latino voters in Galveston County — who account for nearly 40% of the population — were illegally deprived of the ability to elect their preferred candidate in any one of Galveston County’s four districts due to the elimination of the county’s sole majority-minority district.
In the case of Galveston County, neither the county’s Black nor Latino populations are large enough to individually constitute a majority in a particular district; however, the two communities together form a politically cohesive coalition of minority voters that is protected under Section 2.
Although the three-judge panel unanimously affirmed the district court’s decision striking down Galveston County’s map for being a “stark and jarring” VRA violation, it nevertheless held that the entire 5th Circuit should reconsider and overturn precedent that allows for so-called “minority-coalition claims” under the VRA.
The 5th Circuit panel — consisting of judges appointed by George W. Bush, George H.W. Bush and Ronald Reagan — explicitly acknowledged that while it is bound by the 5th Circuit’s precedent allowing for minority-coalition Section 2 claims, it believes that prior decisions permitting such claims are “wrong as a matter of law.” In addition to stating that the 5th Circuit’s “precedent permitting aggregation should be overturned,” the panel requested that the case be reheard by the entire panel of judges on the 5th Circuit — also known as rehearing en banc.
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. The U.S. Supreme Court has not yet decided the issue of minority-coalition claims, meaning that it could be ripe for review if the matter came before the Court.
Meanwhile, the plaintiffs in the ongoing lawsuit last week asked the Supreme Court to step in to order Galveston County to redraw its map for 2024.
On the same day it affirmed that Galveston County’s map contravened the VRA, the three-judge 5th Circuit panel issued a separate order that extended its temporary pause of the district court’s decision requiring the county to redraw its commissioners districts for the upcoming 2024 election cycle. The order stated that the pause would remain in effect pending a decision from the entire 5th Circuit on whether it will rehear the case en banc.
In response to the extended pause, the plaintiffs in the consolidated federal lawsuit last week asked the Supreme Court to immediately lift the 5th Circuit’s pause of the decision ordering Galveston County to redraw its districts to comply with Section 2.
The Supreme Court has not yet weighed in on the pro-voting groups’ emergency request. This afternoon, the plaintiffs filed a letter on the Supreme Court’s docket informing the Court of the 5th Circuit’s order agreeing to rehear the case. The letter notes that although the 5th Circuit nullified the panel’s prior decision and agreed to reconsider the case, it has not yet acted on its extended pause of the district court’s order.
In turn, the plaintiffs’ letter urges the Court to un-pause the district court’s decision and allow for the implementation of fair districts prior to Texas’ Dec. 11 candidate filing deadline for the November 2024 elections.
Today’s rehearing decision is the latest in a series of moves by the 5th Circuit to undermine the VRA and overturn its prior pro-voting rulings.
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 and redistricting. At the end of September, 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. That same day, the 5th Circuit voided a monumental decision striking down Mississippi’s Jim Crow-era felony disenfranchisement provision and agreed to rehear the case en banc.
The 5th Circuit is also poised to issue rulings in the coming months as to whether it will rehear two other pro-democracy decisions — both stemming from cases out of Louisiana.
In early November, Louisiana Attorney General and soon-to-be governor Jeff Landry (R) requested that the entire 5th Circuit rehear a case that maintained a longstanding consent decree to ensure Black representation on the state Supreme Court.
And in an ongoing lawsuit over Louisiana’s congressional map, state officials have indicated that they intend to ask the 5th Circuit to reconsider a recent decision affirming that private plaintiffs — and not just the U.S. attorney general — have the right to bring lawsuits under Section 2. The Louisiana officials point to a recent ruling from the 8th U.S. Circuit Court of Appeals holding that there is no private right of action under Section 2 for litigants in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.