Case: 23-40582 Document: 00516994194 Page: 1 Date Filed: 12/07/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
December 7, 2023
No. 23-40582 Lyle W. Cayce
____________ Clerk
Honorable Terry Petteway; Honorable Derrick Rose;
Honorable Penny Pope,
Plaintiffs—Appellees,
versus
Galveston County, Texas; Mark Henry, in his official capacity as
Galveston County Judge; Dwight D. Sullivan, in his official capacity as
Galveston County Clerk,
Defendants—Appellants,
______________________________
United States of America,
Plaintiff—Appellee,
versus
Galveston County, Texas; Galveston County
Commissioners Court; Mark Henry, in his official capacity as
Galveston County Judge,
Defendants—Appellants,
______________________________
1
Case: 23-40582 Document: 00516994194 Page: 2 Date Filed: 12/07/2023
Dickinson Bay Area Branch NAACP; Galveston Branch
NAACP; Mainland Branch NAACP; Galveston LULAC
Council 151; Edna Courville; Joe A. Compian; Leon
Phillips,
Plaintiffs—Appellees,
versus
Galveston County, Texas; Mark Henry, in his official capacity as
Galveston County Judge; Dwight D. Sullivan, in his official capacity as
Galveston County Clerk,
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC Nos. 3:22-CV-117, 3:22-CV-57,
3:22-CV-93
______________________________
Before Richman, Chief Judge, and Jones, Smith, BARKSDALE,
Stewart, Elrod, Southwick, Haynes, Graves, Higginson,
Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, and
Douglas, Circuit Judges.
Per Curiam:1
IT IS ORDERED that Appellants’ opposed motion to stay the
district court’s October 13, 2023 Order and its November 30, 2023 order and
from any further action altering the boundaries of the Galveston County
_____________________
1
Richman, Chief Judge, and Jones, Smith, Barksdale, Elrod,
Willett, Ho, Duncan, Engelhardt, Oldham, and Wilson, Circuit Judges,
voted to grant a stay pending appeal. Stewart, Southwick, Haynes, Graves,
Higginson, and Douglas, Circuit Judges, voted to deny a stay pending appeal.
2
Case: 23-40582 Document: 00516994194 Page: 3 Date Filed: 12/07/2023
No. 23-40582
Commissioners Court precincts during the pendency of this appeal is
GRANTED.
3
Case: 23-40582 Document: 00516994194 Page: 4 Date Filed: 12/07/2023
Andrew S. Oldham, Circuit Judge, joined by Jones, Smith,
Barksdale, Elrod, Willett, Duncan, Engelhardt, and
Wilson, Circuit Judges, concurring:
A federal court replaced the district map chosen by the people of
Galveston County with a judicially created one. A panel of our court held that
result was commanded by circuit precedent. Petteway v. Galveston County, 86
F.4th 214, 216–18 (5th Cir. 2023) (per curiam). But all three panel members
underscored their “agree[ment] that this court’s precedent permitting
aggregation should be overturned. We therefore call for this case to be
reheard en banc.”
Id. at 218. A majority of judges in active service agreed and
voted to rehear the case.
2023 WL 8223483 (5th Cir. Nov. 28, 2023).
The next question is what rules should govern Galveston County’s
district lines pending en banc rehearing. And the answer is clear: the Purcell
principle requires a stay. See Purcell v. Gonzales, 549 U.S. 1 (2006) (per
curiam). Purcell requires courts to consider the effect of late-breaking judicial
intervention on voter confusion and election participation. See
id. at 4–5.
Since Purcell, the Supreme Court has “repeatedly emphasized that lower
federal courts should ordinarily not alter the election rules on the eve of an
election.” Republican Nat’l Comm. v. Democratic Nat’l Comm.,
140 S. Ct.
1205, 1207 (2020) (per curiam) (citations omitted); see also Democratic Nat’l
Comm. v. Wis. State Legislature,
141 S. Ct. 28, 28 (2020) (mem.) (Roberts,
C.J., concurring) (staying judicial intervention “in the thick of election
season”).
Citing Purcell, the Supreme Court refused to bless judicial
intervention in State elections 21 days before the general election date, see
Veasey v. Perry, 574 U.S. 951 (2014) (mem.), 34 days before the general
election date, see Merrill v. People First of Alabama,
141 S. Ct. 25 (2020)
(mem.), 46 days before the general election date, see Andino v. Middleton,
141
S. Ct. 9 (2020) (mem.), 48 days before the primary election date, see Raysor
4
Case: 23-40582 Document: 00516994194 Page: 5 Date Filed: 12/07/2023
No. 23-40582
v. DeSantis, 140 S. Ct. 2600 (2020) (mem.), 92 days before the primary
election date, Moore v. Harper,
142 S. Ct. 1089 (2022) (mem.), and 120 days
before the primary election date. See Merrill v. Milligan,
142 S. Ct. 879, 879
(2022) (mem.).
In this case, Galveston officials originally selected the following map
for county commissioner precincts (“Original Map”):
ROA.24458–24459. If we allowed the district court’s injunction to go into
effect, the Galveston voters would have this map (“Judicial Map”):
5
Case: 23-40582 Document: 00516994194 Page: 6 Date Filed: 12/07/2023
No. 23-40582
ROA.24458–24459.
Absent a stay, Galveston County’s voters would be forced to vote
under the new Judicial Map even before we could determine whether VRA
§ 2 or the Fourteenth Amendment allowed that result. On November 30,
2023, the district court entered an order implementing the Judicial Map.
That was less than two weeks before Texas’s filing deadline on December 11,
2023. Moreover, our next en banc sitting is January 23–25, 2024. So even if
we were to hear the case in January and release a decision on the lawfulness
of the maps on the same day we heard argument, it would be only 42 days
before the Texas primary election on March 5, 2024. Even that is far too late
for a federal court to tinker with the machinery of a state election and to
displace the Original Map. See e.g., Raysor, 140 S. Ct. at 2600; Middleton, 141
S. Ct. at 9. These principles apply a fortiori to any en banc rehearing after
March 5.
If we did not stay this “extraordinary departure from the traditional
course of relations between the States and the Federal Government,” Shelby
County v. Holder, 570 U.S. 529, 545 (2013) (citation omitted), the people of
Galveston would have to endure an entire election cycle under a “federal
6
Case: 23-40582 Document: 00516994194 Page: 7 Date Filed: 12/07/2023
No. 23-40582
intrusion into sensitive areas of state and local policymaking,” ibid. (citation
omitted). Moreover, we cannot change the shape of the four districts after
county voters have already voted for their party candidates for those set
districts. Cf. Merrill v. Milligan, 142 S. Ct. at 879–81 (Kavanaugh, J.,
concurring). So our choice is either to enter a stay now or allow Galveston
County voters to use the (potentially unlawful) Judicial Map until after the
November 2024 general election. We properly chose now.
Finally, a word on the merits. As the Supreme Court has made clear,
we must “be certain of Congress’ intent before finding that federal law
overrides the usual constitutional balance of federal and state powers.” Bond
v. United States, 572 U.S. 844, 858 (2014) (quoting Gregory v. Ashcroft,
501
U.S. 452, 460 (1991)) (quotation omitted). That Congress must authorize
encroachments upon state sovereignty through “unmistakably clear”
statutory language suggests plaintiffs’ coalition claim must fail. Gregory,
501
U.S. at 460 (quoting Atascadero State Hospital v. Scanlon,
473 U.S. 234, 242
(1985)). As the Sixth Circuit has recognized, such unambiguous language is
lacking here because “[a] textual analysis of § 2 reveals no word or phrase
which reasonably supports combining separately protected minorities.”
Nixon v. Kent County,
76 F.3d 1381, 1387 (6th Cir. 1996) (en banc). Moreover,
it is not at all clear that coalition claims are permissible under the antiproportional-representation provision of VRA § 2. See
52 U.S.C. § 10301(b);
see also Comment, Christopher E. Skinnell, Why Courts Should Forbid
“Minority Coalition” Plaintiffs under Section 2 of the Voting Rights Act Absent
Clear Congressional Authorization,
2002 U. Chi. Legal F. 363, 377 (“Just
because Congress clearly intended to interfere with state election systems by
passing and amending the VRA, it does not inevitably follow that courts
should infer an intention to interfere to such a degree as to encompass
minority coalitions.”). Nor is it clear how much “scholarship supports [the
district court’s] application of Section 2.” Post, at 19 n.2 (Higginson, J.,
7
Case: 23-40582 Document: 00516994194 Page: 8 Date Filed: 12/07/2023
No. 23-40582
dissenting) (principally citing Scotty Schenk, Why Bartlett is Not the End of
Aggregated Minority Group Claims Under the Voting Rights Act, 70 Duke L.J.
1883, 1889 n.29 (2021)). But see Schenk, 70 Duke L.J. at 1889 (“Scholarly
views on aggregated claims under Section 2 are split.”).
At the end of the day, plaintiffs would read § 2 to require race-based
redistricting with no logical endpoint. The County has shown a likelihood of
success in arguing that is unlawful. The County has also shown the other stay
factors required by Nken v. Holder, 556 U.S. 418 (2009). Therefore, the en
banc court was correct to stay implementation of the Judicial Map.
8
Case: 23-40582 Document: 00516994194 Page: 9 Date Filed: 12/07/2023
Priscilla Richman, Chief Judge, concurring:
I concur in granting a stay of the district court’s October 13, 2023 and
November 1, 2023 orders that adopted “Map 1” as the remedial plan for
governing the 2024 election of members of the Galveston County
Commissioners Court. The filing deadline for candidates for that
Commission, and other state and federal candidates for the 2024 election in
Texas, is December 11, 2023, which is four days from today. For the reasons
explained in Judge Oldham’s concurring opinion, a decision needs to be
made at this juncture as to what map will be used to establish the districts
from which the Commissioners will be elected. Even if we heard this case en
banc in January, and the outcome of the appeal were that the map that is
permitted to go into effect now, in December 2023, is not the map that should
have governed, we cannot (or at least should not) consider unraveling what
will have transpired in order to put into place a different map just before the
March 2024 primary elections, or worse yet, after the March 2024 primary
elections.
I do not know how the en banc court will rule. I remain open on the
underlying merits and await full briefing, argument, and deliberation before
deciding the important issues presented in this appeal. But our court is
confronted with deciding, now, which map is going to apply. We must do so
based on neutral principles. The Supreme Court has provided guidance,
which we must apply, and that guidance is found in Purcell v. Gonzalez,1 and
decisions applying it.
To me, a critical issue is whether Galveston County must establish
that it is likely to succeed on the merits. Judge Higginson’s dissenting
_____________________
1
549 U.S. 1 (2006).
9
Case: 23-40582 Document: 00516994194 Page: 10 Date Filed: 12/07/2023
No. 23-40582
opinion in the present case looks to the Nken v. Holder2 factors that typically
apply in determining whether a stay pending appeal should be granted. One
of the most significant factors in Nken is likelihood of success on the merits.
However, when a stay is requested that impacts elections, and the
commencement of the election process is imminent, the Supreme Court has
applied Purcell, and generally has not considered likelihood of success on the
merits, though dissenting Justices have lamented the removal of that factor
from the equation.3
If likelihood of success on the merits is a factor, even in applying
Purcell, the question is whether the law that existed when the district court
ruled is the measure. Or, instead, may an appellate court with the power to
abrogate existing case law consider what it thinks the law, correctly
interpreted, will be once the appeal is finally decided. The procedural
posture of this case is somewhat unusual and raises this question.
A panel of this court affirmed the district court’s order, concluding
that existing precedent in this Circuit “permits distinct minority groups to
be aggregated under Section 2” of the Voting Rights Act.4 However, the
panel disagreed with that precedent and called for en banc rehearing.5 This
_____________________
2
556 U.S. 418, 437 (2009).
3
See Veasey v. Perry, 574 U.S. 951, 952 (2014) (Ginsburg, J., dissenting)
(“Refusing to evaluate defendants’ likelihood of success on the merits and, instead, relying
exclusively on the potential disruption of Texas’ electoral processes, the Fifth Circuit
showed little respect for this Court’s established stay standards. See Nken v. Holder,
556
U.S. 418, 434 (2009) (‘most critical’ factors in evaluating request for a stay are applicant’s
likelihood of success on the merits and whether applicant would suffer irreparable injury
absent a stay). Purcell held only that courts must take careful account of considerations
specific to election cases . . . not that election cases are exempt from traditional stay
standards.”).
4
Petteway v. Galveston Cnty., 86 F.4th 214, 216 (5th Cir. 2023).
5
See id. at 217-18.
10
Case: 23-40582 Document: 00516994194 Page: 11 Date Filed: 12/07/2023
No. 23-40582
court granted rehearing en banc in an order filed November 28, 2023.
Galveston County and the other appellants requested a stay of the district
court’s orders pending the outcome of this appeal.
Judge Higginson’s dissenting opinion says we should apply
existing Circuit precedent and hold that Galveston County has not shown
likelihood of success on the merits. Judge Oldham’s concurring opinion,
joined by a majority of the en banc court, indicates that Section 2 of the
Voting Rights Act does not unambiguously support combining separately
protected minorities. That portends, if not expresses, a disagreement with
current Circuit precedent. Judge Oldham’s opinion therefore concludes
that Galveston County has shown a likelihood of success on the merits.
If I were writing on a clean slate, I would conclude that the district
court faithfully applied existing precedent from this Circuit, and therefore
there was no error. I would deny the stay and proceed with en banc
consideration. The outcome of the en banc court’s decision would apply
going forward, but not to the 2024 election, assuming, of course, that the
Supreme Court ultimately would not reverse us.
But we are not writing on a clean slate. Though I have not found a
Supreme Court decision squarely on point, and there are mostly separate
opinions, consideration of the likelihood of success on the merits does not
seem to have been embraced by a majority of the Supreme Court in the Purcell
context.
For example, in April 2020, the Supreme Court granted a stay of a
district court order to the extent it required the State of Wisconsin to count
absentee ballots postmarked after election day on Tuesday, April 7, 2020.6
_____________________
6
Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205 (2020).
11
Case: 23-40582 Document: 00516994194 Page: 12 Date Filed: 12/07/2023
No. 23-40582
The Court’s rationale was based primarily on the fact that the plaintiffs did
not ask the district court for this relief.7 As for legal precedent, the Supreme
Court said, “[t]his Court has repeatedly emphasized that lower federal
courts should ordinarily not alter the election rules on the eve of an
election,”8 citing Purcell,9 Frank v. Walker,10 and Veasey v. Perry.11 There was
no discussion in either the Supreme Court’s majority opinion or the
dissenting opinion of likelihood of success on the merits. Similarly, there was
no mention of likelihood of success on the merits in Purcell, Frank v. Walker,
or the Supreme Court’s majority opinion in Veasey.
Later in 2020 (in October of that year), the Supreme Court denied an
application to vacate a stay the Seventh Circuit had granted of a district court
order enjoining enforcement of the State of Wisconsin’s laws governing an
impending election.12 The very succinct majority opinion provided no
reasoning. But there were separate opinions. Chief Justice Roberts
said it was “improper” for the district court to have “intervened in the thick
of election season to enjoin enforcement of a State’s laws” and expressed
agreement with the Seventh Circuit’s decision to stay the injunction pending
appeal.13 The Seventh Circuit had not addressed likelihood of success on the
merits in staying the district court’s injunction. Nor did Justice
Gorsuch’s nor Justice Kavanaugh’s concurring opinions in that
_____________________
7
Id. at 1206.
8
Id. at 1207.
9
549 U.S. 1 (2006).
10
574 U.S. 929 (2014).
11
574 U.S. 951 (2014).
12
Democratic Nat’l Comm. v. Wisconsin State Legislature, 141 S. Ct. 28 (2020).
13
Id. at 28.
12
Case: 23-40582 Document: 00516994194 Page: 13 Date Filed: 12/07/2023
No. 23-40582
case consider likelihood of success on the merits in agreeing that the Seventh
Circuit’s stay should not be vacated in light of the district court’s
interference with the state’s handling of the impending election. Justice
Kagan’s dissenting opinion did not address likelihood of success on the
merits either.
Factually, the closest Supreme Court case to the one before us seems
to be Merrill v. Milligan.14 Diverging views about the role of the likelihood of
success on the merits were evident in separate opinions in that 2022
Section 2 voting rights decision. Without providing its rationale, a majority
of the Supreme Court issued a stay pending appeal of a three-judge district
court’s injunctions.15 The district court had concluded that Alabama’s
redrawing of congressional districts likely violated federal voting-rights laws
and ordered that Alabama’s “congressional districts be completely redrawn
within a few short weeks.”16 The district court “declined to stay the
injunction for the 2022 elections even though the primary elections [were to]
begin (via absentee voting) just seven weeks from [the Supreme Court’s
decision], on March 30.”17 Justice Kavanaugh, joined by Justice
Alito, opined that ordinarily, “a party asking this Court for a stay of a lower
court's judgment pending appeal or certiorari ordinarily must show (i) a
reasonable probability that this Court would eventually grant review and a
fair prospect that the Court would reverse, and (ii) that the applicant would
likely suffer irreparable harm absent the stay. In deciding whether to grant a
stay pending appeal or certiorari, the Court also considers the equities
_____________________
14
142 S.Ct. 879 (2022).
15
Id. at 879.
16
Id. (Kavanaugh, J., concurring).
17
Id.
13
Case: 23-40582 Document: 00516994194 Page: 14 Date Filed: 12/07/2023
No. 23-40582
(including the likely harm to both parties) and the public interest.”18 But,
citing Purcell, they were of the view that there was an exception: “[a]s the
Court has often indicated . . . that traditional test for a stay does not apply (at
least not in the same way) in election cases when a lower court has issued an
injunction of a state’s election law in the period close to an election.”19 These
two concurring Justices did not, however, think that Purcell “could be
read to imply that the principle is absolute and that a district court may never
enjoin a State’s election laws in the period close to an election.”20 They
explained that “[a]lthough the Court has not yet had occasion to fully spell
out all of its contours,” they “[thought] that the Purcell principle thus might
be overcome even with respect to an injunction issued close to an election if
a plaintiff establishes at least the following: (i) the underlying merits are
entirely clearcut in favor of the plaintiff; (ii) the plaintiff would suffer
irreparable harm absent the injunction; (iii) the plaintiff has not unduly
delayed bringing the complaint to court; and (iv) the changes in question are
at least feasible before the election without significant cost, confusion, or
hardship.”21
The Chief Justice dissented in Merrill v. Milligan, “because,”
he said, “in my view, the District Court properly applied existing law in an
extensive opinion with no apparent errors for our correction.”22
Nevertheless, Chief Justice Roberts recognized that “while the
District Court cannot be faulted for its application of Gingles, it is fair to say
_____________________
18
Id. at 880 (citations omitted).
19
Id.
20
Id. at 881.
21
Id.
22
Id. at 882.
14
Case: 23-40582 Document: 00516994194 Page: 15 Date Filed: 12/07/2023
No. 23-40582
that Gingles and its progeny have engendered considerable disagreement and
uncertainty regarding the nature and contours of a vote dilution claim.”23 He
explained what he would have done:
In order to resolve the wide range of uncertainties arising under
Gingles, I would note probable jurisdiction in Milligan and grant
certiorari before judgment in Caster, setting the cases for
argument next Term. But I would not grant a stay. As noted,
the analysis below seems correct as Gingles is presently applied,
and in my view the District Court's analysis should therefore
control the upcoming election. The practical effect of this
approach would be that the 2022 election would take place in
accord with the judgment of the District Court, but subsequent
elections would be governed by this Court's decision on
review.24
Though I would take a similar approach in the present case, Chief
Justice Roberts’s position did not carry the day in Merrill. A stay was
granted. Accordingly, it appears to me the best path forward in deciding
whether to grant a stay today is to apply the framework set forth by Justice
Kavanaugh’s concurring opinion in Merrill. I therefore conclude that the
parties advocating that new districts should be put in place before the
impending election have not shown that the underlying voting rights issue is
“entirely clearcut” in their favor. There is a circuit split. Our court has taken
the issue en banc to decide whether our existing precedent correctly
construed Section 2 of the Voting Rights Act. Accordingly, I have voted to
grant a stay pending appeal.
Judge Higginson’s dissenting opinion is critical of our court for
setting this case for argument in May. We did so because we have a very full
January en banc docket. I and others are willing to add this case to the January
_____________________
23
Id. at 882-83.
24
Id. at 883.
15
Case: 23-40582 Document: 00516994194 Page: 16 Date Filed: 12/07/2023
No. 23-40582
docket, but a majority of the court voted not to do so. With great respect to
Judge Higginson, I think the only impact moving the oral argument to
January could have is to get our decision to the Supreme Court at an earlier
date for review, if indeed that Court is going to await an en banc decision from
us. Given the cost and complexities of the election process, a “do over” of
filing deadlines or the primary election process for the Galveston County
Commissioner’s Court in January or February is not feasible or supported by
case law. If we do not issue a stay now, the en banc court does reverse the
district court, and we were to restart the election process, it is very probable
that a different set of candidates would file. There would be little time for
those candidates to campaign, and the time and resources expended by
campaigns that commenced in December, or earlier, would be for naught.
There is also a significant concern about public confusion.
For all these reasons, I concur in granting a stay pending appeal.
16
Case: 23-40582 Document: 00516994194 Page: 17 Date Filed: 12/07/2023
James C. Ho, Circuit Judge, joined by Elrod, Circuit Judge, concurring:
Our colleagues explain why “the Purcell principle requires a stay.”
Ante, at 4 (Oldham, J., concurring). See also ante, at 9 (Richman, C.J.,
concurring). Put simply, under Purcell, it is too late in the day for federal
courts to interfere with the district lines that will govern the 2024 election
cycle, given that we’re now on the eve of deadlines set forth under Texas law.
But that does not answer one question raised by Judge Higginson in
his dissent: Why are we waiting until May 2024 to begin our en banc
deliberations in this matter? Post, at 20-21 (Higginson, J., dissenting).
No one knows how long it will take for every member of our en banc
court to decide this case on the merits—for comparison, look at the cases that
remain pending on our 2023 en banc calendar. Nor does anyone know how
long it will take for the Supreme Court to complete its review of whatever
decision we issue. Perhaps this case will have run its course by sometime in
2024. Perhaps it will not resolve until 2025. Perhaps it won’t resolve before
two years from today—on the eve of deadlines for the 2026 cycle.
I’m aware of no good reason why we cannot add this matter to our
January 2024 en banc docket. On various occasions, our court has shown
that we can act expeditiously when necessary. Given the importance of the
issues presented, there’s every reason to do so here. See ante, at 16 (Richman,
C.J., concurring) (supporting “moving the oral argument to January” and
observing that that would “get our decision to the Supreme Court at an
earlier date for review”).1
_____________________
1
As an alternative to fulsome en banc deliberations, we also could’ve simply
authorized a three-judge panel to decide these issues as an original matter. See, e.g.,
Affholder, Inc. v. S. Rock, Inc., 746 F.2d 305, 311 (5th Cir. 1984) (“Mindful of the law of the
circuit rule, which forbids one panel to overrule another save when a later statute or
Supreme Court decision has changed the applicable law, this opinion has been considered
17
Case: 23-40582 Document: 00516994194 Page: 18 Date Filed: 12/07/2023
_____________________
not only by all members of the panels in those two cases but also by all judges in active
service who were not members of those two panels. . . . [T]he court has sua sponte
reconsidered those two opinions, authorized their overruling, and chosen to adhere to this
opinion.”). See also Gallagher v. Wilton Enters., Inc., 962 F.2d 120, 124 n.4 (1st Cir. 1992);
United States v. Brutus,
505 F.3d 80, 87 n.5 (2nd Cir. 2007); 7th Cir. R. 40(e); United
States v. Meyers,
200 F.3d 715, 721 & n.3 (10th Cir. 2000); Robinson v. Dep’t of Homeland
Sec. Off. of Inspector Gen.,
71 F.4th 51, 56 n.1 (D.C. Cir. 2023); Policy Statement on En Banc
Endorsement of Panel Decisions (D.C. Cir. Jan. 17, 1996).
18
Case: 23-40582 Document: 00516994194 Page: 19 Date Filed: 12/07/2023
Stephen A. Higginson, Circuit Judge, joined by Stewart, Graves
and Douglas, Circuit Judges, dissenting:
Appellant Galveston County filed its stay motion on Friday. We gave
the Respondents the weekend to respond.1 I dissent because Galveston
County’s stay request should fail at the first step of Nken review. See Nken v.
Holder, 556 U.S. 418, 434 (2009).
First, it is settled law in our own circuit that nothing in the history or
text of the Voting Rights Act prevents members of multiple-minority groups
from filing a vote-dilution claim together. League of United Latin Am. Citizens
v. Clements, 999 F.2d 831, 864 (5th Cir. 1993) (en banc); see Campos v. City of
Baytown,
840 F.2d 1240 (5th Cir. 1988). The Eleventh Circuit expressly came
to the same conclusion in Concerned Citizens of Hardee County v. Hardee
County Board of Commissioners,
906 F.2d 524, 526 (11th Cir. 1990). The
Second and Ninth Circuits have implicitly allowed combined claims to go
forward. See Pope v. County of Albany,
687 F.3d 565, 572 n.5 (2d Cir. 2012);
Badillo v. City of Stockton,
956 F.2d 884, 891 (9th Cir. 1992).2 Only a single,
divided circuit has prevented Black and Latino citizens from bringing a
unified vote-dilution claim. Nixon v. Kent County,
76 F.3d 1381, 1393 (6th Cir.
1996) (en banc).
_____________________
1
To be clear, the current stay posture is that “the administrative stay imposed
terminated when the court granted rehearing en banc.” Order, No. 23-40582, Petteway v.
Galveston County (5th. Cir. Nov. 30, 2023)).
2
Considerable scholarship supports this application of Section 2. See Scotty
Schenk, Why Bartlett is Not the End of Aggregated Minority Group Claims Under the Voting
Rights Act, 70 Duke L.J. 1883, 1889 n.29 (2021); see also Sara Michalowski, A Tale of Two
Minority Groups: Can Two Different Minority Groups Bring a Coalition Suit Under Section 2
of the Voting Rights Act of 1965?, 63 Catholic U.L. Rev. 271, 274 (2013); Kevin Sette,
Are Two Minorities Equal to One?: Minority Coalition Groups and Section 2 of the Voting Rights
Act,
88 Fordham L. Rev. 2693, 2731 (2020).
19
Case: 23-40582 Document: 00516994194 Page: 20 Date Filed: 12/07/2023
No. 23-40582
Significantly, the Supreme Court recently confirmed that under
Section 2 of the Voting Rights Act, judicial intervention is appropriate to
remedy discriminatory gerrymandering in “instances of intensive racial
politics where the excessive role of race in the electoral process denies
minority voters equal opportunity to participate.” Allen v. Milligan, 143 S.
Ct. 1487, 1510 (2023) (internal citation and quotation marks omitted).
Significantly, the Court then denied two applications sought by Alabama to
stay the district court’s decision to direct a special master to draw new state
congressional maps. Allen v. Milligan,
216 L. Ed. 2d 1311 (2023); Allen v.
Caster,
216 L. Ed. 2d 1311 (2023).
The election at issue—which the district court comprehensively
showed will deny minority voters of Galveston equal opportunity to
participate—takes place in November 2024. The Supreme Court “has
repeatedly emphasized that lower federal courts should ordinarily not alter
the election rules on the eve of an election.” Republican Nat’l Comm. v.
Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020) (per curiam) (citing
Purcell v. Gonzalez,
549 U. S. 1 (2006)); see Memphis A. Philip Randolph Inst.
v. Hargett,
977 F.3d 566, 572 (6th Cir. 2020). Yet our court’s stay,
compounded by two interrelated decisions we also take—revisiting settled,
thirty-five year old precedent3 yet calendaring that re-argument six months
in the future4—creates the very problem the Supreme Court in Purcell told
_____________________
3
United States v. Corner, 598 F.3d 411, 414 (7th Cir. 2010) (en banc) (“It is rarely
appropriate to overrule circuit precedent just to move from one side of a conflict to another,
[except] when this circuit can eliminate the conflict by overruling a decision that lacks
support elsewhere.”). Cf. NetChoice, LLC v. Paxton,
142 S. Ct. 1715, 1716 (2022) (Alito, J.
dissenting) (“Members of this Court have argued that a determination regarding an
applicant’s likelihood of success must be made under ‘existing law.’” (citing Merrill v.
Milligan,
142 S. Ct. 879 (2022) (Roberts, C. J., dissenting))).
4
The court already is scheduled to convene to hear en banc matters in January, just
two months away.
20
Case: 23-40582 Document: 00516994194 Page: 21 Date Filed: 12/07/2023
No. 23-40582
courts to avoid: The stay imposed today will last through the May argument
until we issue our decision, which may be months later, on the eve of the
election or later.5
Importantly also, the majority’s stay order offers no rebuttal—factual
or legal—of the district court’s 150-page opinion entered with firsthand
benefit of an evidentiary hearing that lasted 10 days.6 The veteran district
judge included in his opinion 42 pages of factual findings detailing the “stark
and jarring” and “mean-spirited” transformation of Precinct 3 from a
majority-minority district to a district with almost no minority voters.7
_____________________
5
Conclusively, we are not “on the eve of an election.” Republican Nat’l Comm.,
140 S. Ct. at 1207. Galveston is not “five days before the scheduled election,” id., nor
obviously is voting already underway, Democratic Nat’l Comm. v. Wisconsin State
Legislature, 141 S. Ct. 28, 31 (2020). The election is one year away and early voting in the
primary would not begin, at the earliest, until nearly three months from now. Important
Election Dates 2023-2024, Tex. Sec’y of State,
https://www.sos.state.tx.us/elections/voter/important-election-dates.shtml. “[E]ve of
an election” cannot be a year from an election. In fact, the Supreme Court recently has
clearly instructed our court to advance litigation when an election is a year away. See, e.g.,
Ardoin v. Robinson,
143 S. Ct. 2654, 2654 (June 26, 2023) (mem.) (“Stay heretofore entered
by the Court . . . vacated. This will allow the matter to proceed before the Court of Appeals
for the Fifth Circuit for review in the ordinary course and in advance of the 2024
congressional elections in Louisiana.”). Even if this were “the eve of an election,” and even
if a heightened version of stay factors were to apply, it is clearcut that plaintiffs would
prevail under our circuit’s “existing precedent.” Petteway v. Galveston County,
86 F.4th
214, 218 (5th Cir. 2023), reh’g en banc granted, opinion vacated, No. 23-40582,
2023 WL
8223483 (5th Cir. Nov. 28, 2023). Our panel explicitly affirmed the district court’s
application of existing precedent.
Id. That precedent has been the stability for legislatures
across our circuit for almost three decades.
6
The oppositions filed by the three Respondents, given a weekend to work, totaled
72 pages—yet the majority rejects their arguments without explanation.
7
As all three Respondents to this motion emphasize, the district court rejected the
race-neutral reasons proffered by the County to explain the 2021 dissolution of Precinct 3.
Cf. Voting Determination Letter, U.S. Dep’t of Just. (Mar. 5, 2012),
https://www.justice.gov/crt/voting-determination-letter-38 (Letter from the Department
of Justice objecting to Galveston County 2012’s redistricting plan as a “retrogression in
21
Case: 23-40582 Document: 00516994194 Page: 22 Date Filed: 12/07/2023
No. 23-40582
There should be no doubt that, in giving ourselves a half-year delay
just to hear oral argument to reconsider law that has been ours for decades,
and is the near-consensus application of Supreme Court law, we have
ensured that the district court’s directive—that Galveston remedy its racially
discriminatory redistricting project—will be stymied for an election that will
take place approximately a year from now. That delay-and-default ruling has
no precedent and stands in stark contrast to the Supreme Court’s guarantee
to all of an equal right to vote, which the Court reminded us almost a century
and a half ago, is “preservative of all rights.” Yick Wo v. Hopkins, 118 U.S.
356, 370 (1886).
_____________________
minority voting strength in Precinct 3”). Galveston County’s decade-long effort to abolish
the only majority-minority district in the County occurs in the context of a history of
restrictions on the political power of non-white Texans. See Smith v. Allwright, 321 U.S.
649, 656-57 (1944) (holding that resolution restricting ability to vote in Democratic Party
primaries to “all white citizens of the State of Texas who are qualified to vote under the
Constitution and laws of the State” violated the Fourteenth and Fifteenth Amendments).
22
