Fifth Circuit does its thing with Galveston redistricting

Death, taxes, and the Fifth Circuit being terrible.

Commissioner Stephen Holmes

The U.S. 5th Circuit Court of Appeals has blocked a new political map imposed on Galveston County by a lower court from taking effect. Plaintiffs are asking the U.S. Supreme Court to intervene swiftly to ensure the county uses a map that complies with the Voting Rights Act.

Late Thursday, 5th Circuit issued a stay on the new map until May, when it plans to rehear the lawsuit challenging Galveston County’s 2021 redistricting plan. A district court recently imposed the map on Galveston, having earlier ruled Galveston’s 2021 redistricting plan violates Section 2 of the Voting Rights Act, which bans racial gerrymandering.

“This morning, we have filed an emergency application at the Supreme Court to both vacate the stay, and we’ve also asked the (U.S.) Supreme Court to take this case on the merits,” said attorney Valencia Richardson of the Campaign Legal Center, who represents the plaintiffs in Petteway v. Galveston County. “So, the technical term for that is seeking certiorari before judgment.”


Richardson believes the Petteway plaintiffs are on solid ground with their appeal, given a Supreme Court ruling earlier this year that upheld Section 2 of the Voting Rights Act. “The court’s recent decision in Allen v. Milligan affirmed 40 years of precedent, insofar that it affirmed that the Voting Rights Act still prohibits racial discrimination against racial minorities in the voting process,” she said.

See here, here, and here for the background. Whereas Galveston had been ordered to use a least-changes map that preserved Commissioner Stephen Holmes’ minority-coalition precinct, allowing the map drawn by Galveston Commissioners Court would all but ensure Holmes’ defeat. The timetable is the critical aspect here, since the primary is in March, even if both nominees are unopposed.

You may be asking, isn’t there some legal principle that applies to election-related cases to ensure they don’t confuse voters on the cusp of an election? The answer is yes, it’s called the Purcell principle after a case in Arizona from 2006. It’s also being grossly misused here. I can’t explain it very well, but I have two things for you to read to see for yourself. Appellate lawyer Raffi Melkonian gives a brief summary of the Fifth Circuit’s ruling and why it was unusual. Law professor Steve Vladeck then goes customarily deep on the history and reasoning behind Purcell, how the Fifth Circuit applied it in this case, and why they’re completely wrong and more than a little disingenuous. You should read them both.

Bottom line: Unless SCOTUS intervenes, Galveston will get to neatly eliminate its one Commissioner of color this year, even though the map they’d use to do it with has been ruled unconstitutional. Maybe later, the courts will get back to that. This is the Fifth Circuit in action.

UPDATE: SCOTUS has spoken.

Galveston County will use an electoral map that a federal judge determined violated the Voting Rights Act after the U.S Supreme Court declined to intervene in the case Tuesday.

The decision comes after U.S. District Judge Jeffrey V. Brown found that the county’s precinct map “denies Black and Latino voters the equal opportunity to participate in the political process and the opportunity to elect a representative of their choice to the commissioners court,” in October.

Galveston County appealed the ruling and won a reprieve from the 5th Circuit Court of Appeals, which overruled Brown and said that officials didn’t have to redraw the county’s voting map. The U.S. Supreme Court decision not to intervene means the appellate court’s ruling stands.

Three justices – Elena Kagan, Sonia Sotomayor, and Kentaji Brown Jackson – dissented, saying the appellate court “went far beyond its property authority” by allowing the county’s unlawful electoral map to proceed.

The Supreme Court’s decision will simply embolden politicians to use the same tactics as Galveston County, said Joaquin Gonzalez, senior supervising attorney for the Voting Rights Program at the Texas Civil Rights Project, which represented the plaintiffs who sued the county.

“We are disappointed in today’s ruling,” Gonzalez said. “The residents of Galveston have fought against this map since it was proposed and they deserve to have a resolution. This ruling emboldens more politicians to try the same tactics that the Galveston Commissioners used to create this blatantly discriminatory map.

“We will continue fighting for Galveston residents to have a fair shot to influence the decisions that shape their community,” he added.

The fix is once again in.

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