(CN) — A ruling that Republican leaders of Galveston County, Texas, diluted the voting strength of Democratic-leaning minorities appeared in jeopardy Tuesday as a Fifth Circuit judge said the case is not as black and white as Democrats believe.
U.S. District Judge Jeffrey Brown did not mince words in his Oct. 13 order finding the Republicans who comprise a majority of Galveston County’s Commissioners Court, the county’s elected governing body, had violated Section 2 of the Voting Rights Act by enacting a redistricting map in November 2021 that dismantled Precinct 3, the county’s sole Latino- and Black-majority voting district.
Stephen Holmes, the county’s only Black Democratic commissioner, has represented Precinct 3 for 24 years and is now in his sixth term.
Brown called the new voting plan “mean-spirited,” “jarring,” “stunning” and “egregious.”
He sided with the Justice Department, local NAACP branches and a League of United Latin American Citizens council, and Black Galveston activists after consolidating their three lawsuits challenging the map.
Brown described the map as a “textbook example of racial gerrymandering,” citing an expert who testified during a two-week bench trial in August.
The Donald Trump appointee ordered the defendants to propose a remedial redistricting plan by Oct. 20 and said if they failed to do so he would impose one — drawn by a redistricting expert retained by the Justice Department — so it could be in place by Nov. 11, the first day Commissioners Court candidates can file declarations of their intent to run in the 2024 primary.
But a Fifth Circuit panel upended Brown’s timeline on Oct. 18 when it granted the county and its Commissioners Court a stay of his order.
A different three-judge panel of the New Orleans-based appellate court heard arguments in an expedited hearing Tuesday.
U.S. Circuit Judge Edith Jones, a Ronald Reagan appointee, made clear throughout the 40-minute hearing she disagreed with Brown’s ruling.
To win Section 2 minority voter dilution cases, plaintiffs taking issue with new voting maps must prove three things, according to a test the Supreme Court established in its 1986 ruling Thornburg v. Gingles.
They have to show there is a sufficiently large and geographically compact majority-minority district; it is politically cohesive; and that the majority, in this case white voters, cast their ballots as a bloc to defeat minorities’ preferred candidate.
Brown determined that “race and politics are inextricably intertwined” in Galveston County, population 355,600, because white residents, who account for a majority (54.6%) of its populace, vote for Republicans, while Blacks and Latino residents (a combined 38.6%) vote for Democrats.
But Jones noted there are exceptions to this calculus.
She observed that a Black Republican man named Robin Armstrong, running unopposed, had won a seat on the Commissioners Court in 2022.
In addition, she pointed out that Dwight Sullivan, a Hispanic Republican who is Galveston County’s clerk, had been elected and reelected to the position for several terms. Patricia Grady, another Hispanic Republican with an Anglo-sounding name, presides over a state civil court in the county.
“There is evidence of Hispanic Republicans winning elections. There’s evidence of Mr. Armstrong running, wholly unopposed,” Jones told Justice Department attorney Matthew Drecun.
“So, name me another Section 2 case that’s been successful where you have that kind of racial success in the so-called polarized white community,” she continued.
Drecun replied he does not believe three people constitutes a meaningful amount of minority success.
“The district court looked at this and its finding, which is borne out by the record, is that minority candidates’ success was slow and disproportionately low,” he stated.
Drecun and other plaintiffs’ counsel argued in briefs the Fifth Circuit’s en banc precedent established 30 years ago with the ruling League of United Latin American Citizens v. Clements dictates that the panel must affirm Brown’s order.
In that case, the majority decided that racial minority groups can combine their strength to pursue Section 2 vote-dilution claims, a decision, according to the plaintiffs, in line with Supreme Court case law and all but one of numerous other circuit courts that have ruled on the validity of such claims.
But Galveston County is taking aim at the Fifth Circuit’s precedent.
It argues coalitions of racial groups are not protected under the Voting Rights Act and that it does not make sense to allow them because the “interests of a coalesced minority group are no longer the immediate or single focus in a coalition claim, the combined interests of the coalition are.”
Two of the jurists on Tuesday’s panel — Jones and Senior U.S. Circuit Judge Rhesa Barksdale — may be receptive to the county’s arguments.
Jones criticized the allowance of Black and Hispanic coalitions in a concurring opinion she penned for Clements, writing: “I believe the en banc court should lay to rest the minority coalition theory of vote dilution claims.”
Barksdale, a George H.W. Bush appointee, joined her opinion.
Jones also clashed with plaintiffs’ attorney Chad Dunn in Tuesday’s hearing over whether, if the panel strikes down Brown’s Section 2 findings, the case can be remanded for Brown to take up the plaintiffs’ claims that Galveston County had engaged in intentional racial discrimination in violation of the 14th Amendment.
Dunn argued that Brown had decided the case on the plaintiff’s Section 2 claims but had reserved his ability to rule on their discrimination arguments.
“He did not say he was reserving it,” Jones snapped, adding she does not think the Fifth Circuit can remand the issue to Brown.
“I’ll have to respectfully disagree with the court on that point,” stated Dunn, a principal in the Austin firm Brazil & Dunn.
U.S. Circuit Judge Jennifer Walker Elrod, a George W. Bush appointee, rounded out the panel.
The judges did not say when they would rule on the case.
Given the complex issues, a decision is unlikely before the Fifth Circuit’s stay of Brown’s order expires on Friday. It is expected the appellate court will extend the stay.
Follow @cam_langford
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
