WASHINGTON, D.C. — Yesterday, pro-voting groups asked the U.S. Supreme Court to lift the 5th U.S. Circuit Court of Appeals’ pause of a decision ordering Galveston County, Texas to redraw its commissioners court districts to comply with Section 2 of the Voting Rights Act (VRA).
The emergency request was filed nearly one week after a three-judge 5th Circuit panel affirmed a district court decision in a consolidated federal lawsuit, which struck down Galveston County’s redistricting plan for unlawfully diluting Black and Latino voting power. The panel’s order stated that the district court “did not clearly err” in finding that the county’s elimination of its sole, longstanding majority-minority district — composed of a coalition of Black and Latino voters — contravened Section 2’s prohibition on racially discriminatory redistricting plans.
Although the 5th Circuit panel maintained that Galveston County violated the VRA, it nevertheless 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.
The panel acknowledged that while 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 Nov. 10 order declared.
After affirming Galveston’s VRA violation last Friday, the 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 specifically 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.
While it is common for an appellate court to temporarily stay a lower court’s decision as an appeal is being litigated, it is uncommon for a court to keep the pause in place after the appeal is resolved. It is even less common for an appellate panel to affirm a lower court decision and simultaneously request that its own decision be reheard and overturned.
In yesterday’s emergency request to the Supreme Court, a group of Galveston County voters argues that the 5th Circuit’s extension of its temporary pause is effectively halting progress towards fair, VRA-compliant districts. As the applicants point out, “[u]nlike the court’s prior administrative stay orders on appeal, this one has no expiration date, and comes after applicants have opposed the stay” and have already prevailed on their Section 2 claims in both the district court and the 5th Circuit.
The emergency application also underscores the time sensitive nature of implementing new commissioners court districts, given that Texas’ candidate filing period for the November 2024 election commenced on Nov. 11 and ends on Dec. 11. The Galveston County voters argue that under the Purcell principle — which prohibits changes to maps or voting rules too close to an election — the urgency of adopting a new map in advance of the 2024 election is even more pronounced.
“If the discriminatory map enjoined by the district court is permitted to stay in effect for the 2024 election, Galveston County’s minority voters—including applicants—will for the first time in thirty years be fragmented across four precincts and have no opportunity to elect a commissioner of their choice,” the emergency request concludes.
The emergency application is addressed to Justice Samuel Alito who oversees all emergency applications for the 5th Circuit. Alito can either decide to grant or deny the stay himself or refer the matter to the entire Court. If the full Court considers the application, the votes of five justices are required to grant the emergency request.