87 F.4th 721
5th Cir.2023Background
- The district court held a 10-day evidentiary hearing and issued a detailed remedial judgment finding Galveston County's 2021 redistricting unlawfully diminished minority voting power (including dissolution of a majority-minority Precinct 3) and adopted a court-drawn remedial map for the 2024 cycle.
- A Fifth Circuit panel affirmed under existing circuit precedent permitting aggregation of distinct minority groups under §2 of the Voting Rights Act but called for en banc rehearing; the en banc court granted rehearing.
- Galveston County (the appellants) moved for a stay of the district court’s remedial map pending en banc review; the en banc Fifth Circuit granted a stay by a divided vote.
- Major legal tensions: (1) timing and Purcell-related concerns about altering election rules close to filing and primary deadlines; (2) whether §2 permits aggregation (coalition) claims of distinct minority groups; and (3) whether existing Fifth Circuit precedent should be overruled.
- Calendar pressure: candidate filing deadline under Texas law was December 11, 2023 and the en banc court scheduled argument months later, prompting majority reliance on election-timing doctrine to justify a stay.
Issues
| Issue | Plaintiffs' Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a stay of the district court’s remedial map pending en banc review should issue | The remedial map properly remedies §2 violations and should be implemented; delay would perpetuate discrimination | Purcell and election-timing principles counsel against late judicial changes; a stay is needed to avoid voter confusion and disruption | Stay granted by majority pending en banc appeal (court invoked Purcell and related election-timing concerns) |
| Whether Galveston has shown likelihood of success on the merits (i.e., §2 coalition claims are unlawful) | §2 and circuit precedent allow aggregation of distinct minority groups and the district court correctly applied precedent | §2 does not clearly authorize aggregated coalition claims; Fifth Circuit precedent should be revisited and likely overturned | Majority concluded stay appropriate (several concurrences emphasized likely success or serious questions on merits); dissent said existing precedent favors plaintiffs and Nken’s first-factor fails |
| Whether existing Fifth Circuit precedent permits aggregation of separate minority groups under §2 | LULAC/Clements and other Fifth Circuit authority allow combined claims | That precedent is wrong or ambiguous and should be reconsidered en banc | En banc rehearing granted to reconsider precedent; the stay preserves status quo pending that review |
| Role of Purcell vs. traditional stay (Nken) factors in election cases | Plaintiffs: traditional stay factors should control and the County has not met them | Defendants: Purcell’s election-timing rule reduces emphasis on likelihood-of-success and favors staying late changes | The court’s majority applied Purcell and related Supreme Court guidance; concurring opinions discussed how Purcell interacts with Nken; dissent insisted Nken’s likelihood-of-success step fails here |
Key Cases Cited
- Purcell v. Gonzalez, 549 U.S. 1 (2006) (cautions courts about altering election rules close to an election)
- Nken v. Holder, 556 U.S. 418 (2009) (stay-pending-appeal standard)
- Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205 (2020) (reiterates that lower courts ordinarily should not change election rules near elections)
- Merrill v. Milligan, 142 S. Ct. 879 (2022) (stay of district-court redistricting remedial orders in §2 context; discussion of Purcell and stay standards)
- Thornburg v. Gingles, 478 U.S. 30 (1986) (framework for vote-dilution §2 claims)
- Allen v. Milligan, 143 S. Ct. 1487 (2023) (confirms federal courts may remedy discriminatory racial gerrymanders under §2)
- Shelby County v. Holder, 570 U.S. 529 (2013) (federalism limits on federal intrusion into state election matters)
- Bond v. United States, 572 U.S. 844 (2014) (clear-statement principle for congressional encroachments on state sovereignty)
- League of United Latin Am. Citizens v. Clements, 999 F.2d 831 (5th Cir. 1993) (Fifth Circuit precedent permitting combined minority §2 claims)
- Nixon v. Kent County, 76 F.3d 1381 (6th Cir. 1996) (en banc) (refuses aggregation of distinct minority groups under §2)