5th Circuit To Hear Two Critical Redistricting Cases in Texas and Louisiana

By Crystal Hill

The nation’s most conservative federal appeals court is slated to rehear two redistricting cases, which could determine where and for whom minority voters in a Texas county can cast their ballots and whether a decadesold consent decree in Louisiana will continue.

The 5th U.S. Circuit Court of Appeals will hear the cases — Petteway v. Galveston County and Chisom v. Louisiana — after invalidating lower court decisions that found a voting map in Galveston County, Texas, to be in violation of the Voting Rights Act and, separately, upheld a 1992 consent decree in Louisiana that established a majority-Black district for state Supreme Court elections.

The appeals court, which hears cases out of Louisiana, Texas and Mississippi, is scheduled to hold arguments in the Galveston case on May 14 and the Louisiana case on May 16. While cases before the court that comprises 17 active judges — 26 total — are typically heard by a three-judge panel, these cases will be heard by the entire court, or en banc.  

The upcoming hearings continue the court’s concerning trend of rehearing decisions advancing or affirming fair representation for minority voters. In Mississippi, for example, a 19-judge panel on the court reheard a case regarding a state constitutional provision that permanently bans individuals with certain felony convictions from voting — after a three-judge panel on the same court struck the provision down.

The two cases being reheard this week stem from years, and in Louisiana’s case decades, of litigation over establishing a suitable map — leaving voters in the balance.

“It’s, unfortunately, not uncommon for redistricting litigation to take an extraordinarily long time,” Michael Li, senior counsel for the Brennan Center’s Democracy Program, told Democracy Docket in a phone interview. “The reality is that oftentimes discriminatory maps get left in place for an election cycle, or two, or three, or even more, before maps are redrawn.”

Black voters seek a fair map in Galveston County. 

Although the lawsuit focuses on a 2021 map, the issue dates back even earlier to when the 2010 U.S. census results were released, prompting a new round of redistricting efforts across the country. 

In 2011, officials in Galveston County, Texas, tried to adopt a new voting map for the commissioner’s court — the county’s governing body — but ran afoul of the Department of Justice (DOJ). The agency in 2012 objected to the map under Section 5 of the Voting Rights Act, which subjected certain states and localities to federal preclearance before any voting changes it passed could go into effect, in order to ensure that those jurisdictions weren’t being discriminatory.

Part of the DOJ’s objections was the map’s “retrogressive” impact on “minority voting strength from the relocation of a largely white area (the Bolivar Peninsula) from Precinct 1 into Precinct 3,” which was the sole majority-minority district for the commissioners court, the government states in court documents. The county eventually revised the map, retaining Precinct 3 as a majority-minority district, and the map was precleared.

In 2013, however, the oversight that the federal government says kept Galveston County from adopting a malproportioned map was effectively eliminated, after the U.S. Supreme Court issued its controversial decision gutting the “preclearance” requirement outlined in Sections 4 and 5 of the Voting Rights Act of 1965.

After that decision, counties like Galveston were no longer bound by preclearance constraints, and acted accordingly. In 2021, following the release of the 2020 census, the commissioners “employed the same attorneys who drew the maps previously denied preclearance by the DOJ in 2011,” the lawsuit states, and went on to adopt virtually the same map.

The commissioners court proposed two maps to the public on Oct. 29, 2021. The first proposal — Map 1 — retained Precinct 3’s status as a majority-minority precinct, with Black and Latino voters making up over 55% of the precinct’s citizen voting age population (CVAP).

The second proposal — Map 2 — broke up Precinct 3 and fragmented Galveston County’s minority population evenly among all four precincts, according to the brief. The county ended up adopting the second map, which left Precinct 3 with the “lowest Black and Latino CVAP proportion of any precinct,”  and spreading other minority voters across precincts. 

“The two basic tools of drawing discriminatory maps or either packing voters that you don’t like together so that you limit their effectiveness,” Li told Democracy Docket, “or breaking them apart.”

In its defense, the county said the plaintiffs can’t prove that the redistricting process was performed because of race, implying in court documents that there were other factors at play, such as balancing the population and keeping commissioners’ homes within their precincts. The county also said the commissioners court members “did not consider race,” except for one commissioner, Stephen Holmes, a Black man who has covered Precinct 3 for over two decades.

A group of voters sued over the map in 2022, and a federal judge in 2023 concluded that the 2021 map adopted by the commissioners court violates Section 2 of the Voting Rights Act and denied Black and Latino voters an “an equal opportunity to participate in the political process and to elect a candidate of their choice,” according to the district court order.

Last week, Louisiana Gov. Jeff Landry (R) signed a new state Supreme Court map into law, establishing two majority-Black districts and giving Black voters a better chance at fair representation in a state where they comprise nearly a third of the population. 

The news comes as Louisiana remains embroiled in several pending cases stemming from legal challenges to its legislative and congressional maps, neither of which the state has in place because of ongoing litigation. 

And, even though the new court map was cheered by civil rights attorneys and activists, the battle for fair representation on the state’s highest court continues in a case that could determine whether Louisiana has to maintain a 1992 consent decree that established a single majority-Black district in Orleans Parish for state Supreme Court elections.

The state wants to dissolve the decree, which was the result of a 1986 lawsuit from Black voters in Louisiana who challenged the system Louisiana had in place at the time for electing the state’s seven Supreme Court justices.

Under that system, five justices were elected from five single districts and two justices were elected from one multi-member district that includes the majority-Black Orleans Parish. The state had never had a Black justice on the state Supreme Court prior to the decree.

After a lengthy legal battle, the involved parties entered a consent decree in August of 1992 that called for the Louisiana Legislature to reapportion the seven districts to include a single-member district that is majority-Black in voting-age population and includes Orleans Parish. Lawmakers codified the decree into law, and it became effective on Jan. 1, 1999, according to a 2022 plaintiff brief.

Over a two-decade span, Louisiana voters in Orleans Parish elected three Black justices to serve on the high court in the seat established by the consent decree — Justices Revius O. Ortique, Jr., Bernette J. Johnson, and Piper D. Griffin.

During Johnson’s tenure, the plaintiffs state, the question arose of whether her service on the temporary seat should be credited toward her total tenure on the court. Johnson, who was vying for a chief justice position, filed a motion in federal district court to reopen the old case, so she could seek a declaratory judgment that she was the rightful successor to the position. The state opposed Johnson’s bid, arguing that she should instead defer to Louisiana on the issue. But a federal court sided with Johnson, who later retired in 2020.  

“No other district in Louisiana has elected a Black Justice,” the brief says. “And no representatives for the State moved to modify or dissolve the Consent Decree while challenging Chief Justice Johnson’s tenure credit or following Chief Justice Johnson’s retirement.”

In 2021, Landry, who was state attorney general at the time, filed a motion to dissolve the consent decree. “The state has upheld its end of the deal,” Landry wrote in an August 2022 brief. At the time, he argued that the state fulfilled all of its obligations under the decree, and that a population imbalance among Supreme Court districts required the state to redraw them.

But the federal district court in 2022 ruled that the state attorney general did not sufficiently show that enforcement of the consent decree “would be detrimental to the public interest” and said the state “is under no pressing obligation to reapportion the supreme court districts.”

And though the state is arguing that the lower court erred in its ruling, last week’s approval of the new state Supreme Court map raises the question of whether the new map bolsters the state’s case against keeping the decree alive.

“The district court’s action in this case is unprecedented, extraordinary, and wrong,” the state writes in a February brief in the 5th Circuit. “It is life imprisonment by consent decree with no possibility of parole. And it directly abridges the State’s sovereign responsibility for elections of its own Supreme Court.”

The 5th Circuit is the nation’s most conservative federal appeals court — but do politics matter?

Based in New Orleans, Louisiana, the 5th Circuit is among 13 federal appeals courts operating in the country, but it’s arguably become one of the most talked-about federal courts in recent years, due in large part to its abundance of Republican-appointed judges, six of whom were appointed by Trump, and its controversial rulings in issues ranging from voting rights to criminal justice. 

An appeals court case is typically heard by a three-judge panel. But in Petteway and Chisom, the entire court will rehear arguments after voiding its previous decisions that affirmed lower court rulings in those cases.

In the Galveston County case, the 5th Circuit affirmed Brown’s ruling that struck down the commissioners court map for violating Section 2 of the Voting Rights Act, but requested that the entire court rehear the case. Specifically, the three-judge panel held that the entire court should reconsider precedent that allows for “minority-coalition” vote-dilution claims under the VRA.

“The district court appropriately applied precedent when it permitted the black and Hispanic populations of Galveston County to be aggregated for purposes of assessing compliance with Section 2,” the court wrote in its order. “But the members of this panel agree that this court’s precedent permitting aggregation should be overturned. We therefore call for this case to be reheard en banc.”

In the Louisiana case, the 5th Circuit affirmed the district court’s ruling to keep the consent decree in effect, but later agreed to rehear the case en banc after the state requested a rehearing. 

According to a March report in Bloomberg Law, the court reheard five cases en banc in January, and agreed to hear five more in May. Comparably, the most cases the court has reheard was 11 cases in 2003, the publication reported. During the 5th Circuit’s 2021-2022 term, it granted only four out of 203 — or 2% of — petitions for rehearing en banc, according to Democracy Docket.

The court’s decision to rehear a case could be attributed to a number of factors, appellate attorney Raffi Melkonian told Democracy Docket in a phone interview, including the number of Trump-appointed judges on the court — but not necessarily because of partisan leanings.

“I think the six Trump appointees just have a relatively different judicial philosophy than the judges they replaced,” Melkonian, who has argued appeals before the U.S. Supreme Court, said. “They’re probably more originalist or textualist. And that has the consequence of going en banc more often, because the originalist answer might be way different than what the court has done for 40 years, so they end up wanting to go en banc to change that.”

But how much is politics a factor? “It’s hard to say whether it’s politics, or whether it’s judicial philosophy, and how closely politics maps on to judicial philosophy,” Melkonian said. “But what I’ll say is, when you get any decision in the Fifth Circuit that’s by two Democratic-appointed judges, or three, the chance of an en banc rehearing goes up.”

This story was corrected on May 15, 2024, at 5:45 p.m. EDT to reflect that Louisiana’s new Supreme Court map could potentially bolster, not undermine, the state’s case against the 1992 consent decree.