Case Information
Unitеd States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED ____________ December 7, 2023 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 , ______________________________
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, B ARKSDALE , Stewart, Elrod, Southwick, Haynes, Graves, Higginson, Willett, Ho, Duncan, Engelhardt, Oldham, Wilsоn, and Douglas, Circuit Judges .
Per Curiam:
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 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. Commissioners Court precincts during the pendency of this appeal is GRANTED.
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 casе.
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
,
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
v. DeSantis
, 140 S. Ct. 2600 (2020) (mem.), 92 days before the primary
election date,
Moore v. Harper
,
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”): 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 argumеnt, 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,
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
,
Finally, a word on the merits. As the Supreme Court has made clear,
we must “be certain of Congress’ intent befоre finding that federal law
overrides the usual constitutional balance of federal and state powers.”
Bond
v. United States
,
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
,
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 eleсted. 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 , 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
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 аn 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 rehеaring. [5] This
[2]
[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.”).
Petteway v. Galveston Cnty.
,
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 Supremе 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.
Republican Nat’l Comm. v. Democratic Nat’l Comm.
,
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]
[10]
[11]
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 distriсt 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]
[15] Id. at 879. Id . ( Kavanaugh , J., concurring). Id . (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 tо 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. Id . Id. at 882. 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 аnalysis 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 appeаrs 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 Id. at 882-83. Id . at 883. 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. 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 оne 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 resоlve 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”). 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.
,
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
,
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
,
terminated when the court granted rehearing en banc.” Order, No. 23-40582, Petteway v. Galveston County (5th. Cir. Nov. 30, 2023)). Considerable scholarship supports this application of Section 2. See Scotty
Schenk, Why Bartlett is Not the End of Aggregated Minority Grоup 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).
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 oppоrtunity 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
,
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 nоt alter
the election rules on the eve of an election.”
Republican Nat’l Comm. v.
Democratic Nat’l Comm.
,
two months away.
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
,
[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 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 Justicе objecting to Galveston County ’s redistricting plan as a “retrogression in
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 precеdent 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).