The 5th Circuit Is Rehearing Voting Decisions at an Alarming Rate

A troubling trend is emerging in the nation’s most conservative federal appeals court. The 5th U.S. Circuit Court of Appeals is rehearing pro-democracy decisions at an alarming rate and is doing so at the request of Republicans who are strident in their anti-voting philosophies. 

The 5th Circuit is no stranger to criticism as the foremost conservative — and oftentimes most outlandish — court. These critiques are often warranted as the Trump-appointee stacked court is consistently taking actions that even the ultra-conservative U.S. Supreme Court has to correct. From endorsing draconian abortion policies to the perturbing writings of one of the court’s most prominent Trump appointees, the 5th Circuit gives court watchers a plethora of reasons to be concerned, but one rapidly emerging trend is the rate at which this southern-based court is rehearing democracy-related cases with its full 17-judge panel.

A typical appeals court case is heard by a three-judge panel. 

When a case is appealed up to the 5th Circuit, it is heard by a three-judge panel — chosen from the circuit’s 17 judges — which issues an opinion on the appeal. However, per the circuit’s rules, cases may be reheard by the entire court, or en banc, if a majority of the circuit’s judges agree to rehear the case. This can happen in two ways: a party in the case can ask the entire court to rehear the case and the entire court will take a poll on if the case will be reheard or the court can decide to do so “sua sponte” (of its own volition) and poll of all the judges to determine if the case will be reheard. Once a case is reheard, the entire court will decide whether or not to uphold the three-judge panel’s previous ruling.

Republican officials have now made a habit of asking the court to rehear decisions they do not like. They have done so in every state covered by the circuit: Louisiana, Mississippi and Texas.

Last year, the court agreed to rehear a decision that would have restored voting rights to tens of thousands of Mississippi voters, including a disproportionate amount of Black voters. In May, the entire 5th U.S. Circuit Court of Appeals is scheduled to rehear two critical redistricting cases — one out of Louisiana and one out of Texas — en banc. 

To make bleak matters worse, when the 5th Circuit decides to rehear these cases, the rules of the 5th Circuit are such that the underlying decision is voided. This has meant that decisions that brought voters fair maps and re-enfranchised thousands were quickly retracted and as a result, voters pay the price. 

En banc rehearing is rare, but it is becoming common in voting and redistricting cases. 

During its 2021-2022 term, the 5th Circuit granted only four out of 203 — or 2% of — petitions for rehearing en banc. Only one petition from the 2021-2022 term pertained to voting rights and it was in a case where the entire 5th Circuit upheld Mississippi’s felony disenfranchisement scheme in Harness v. Watson. Rehearing increased the following term when the court granted nine out of 238 — or almost 4% of — requests. However, none of these cases that were reheard were democracy or voting rights related. 

This judicial term, the court has already reheard one voting rights case and is scheduled to rehear two additional redistricting cases — three times more voting rights cases than the prior two terms. 

The drastic increase in the number of democracy related cases the court will rehear this term alone is staggering when contrasted to previous years. Given that each of these cases stand to drastically impact how and if minority voters are represented at both the state and local level, the stakes are extremely high. 

The full 5th Circuit reheard a challenge to Mississippi’s Jim Crow-era felony disenfranchisement provision.

In a sweeping 2-1 decision, the 5th Circuit struck down Mississippi’s lifetime ban on voting rights for those convicted of certain felonies, holding that is a form of “cruel and unusual punishment” in violation of the 8th Amendment. This decision was a bastion of hope for what courts can be: a mechanism to correct for a multigenerational wrong.

Then, Republican Attorney General Lynn Fitch asked the entire 5th Circuit to rehear the case, arguing that the panel’s decision “will inflict profound damage and sow widespread confusion” if allowed to stand. A mere 55 days after a decision that could have reshaped the law to be more just and humane the state and possibly the Circuit for good, the 5th Circuit granted rehearing en banc, voiding the panel’s decision and reinstating Mississippi’s Jim Crow-Era felony disenfranchisement scheme. This also meant that the tens of thousands of Mississippians that could have been re-enfranchised leading up to the 2023 gubernatorial election were no longer able to have their rights restored. 

Earlier this year, the 5th Circuit reheard the case. Now, tens of thousands of citizens’ voting rights hang in the balance of the nation’s most conservative court. 

The 5th Circuit has two more rehearings on its docket for May that could have major implications for the Voting Rights Act. 

Last October, a Trump-appointed federal judge struck down the districts for Galveston County, Texas’ commissioners court — the county’s primary governing body — for diluting Black and Latino voting power in violation of Section 2 of the Voting Rights Act (VRA). However, Republican defendants appealed to the 5th Circuit and advanced the regressive legal argument that minority-coalition districts are not protected by the Voting Rights Act. 

Then, in an exceedingly rare move, the 5th Circuit affirmed that the map should be struck down while inviting the entire court to reconsider the decision. While the panel agreed that the commissioners’ court map violates the VRA, it asked for rehearing of the court’s own precedent, writing that “the members of this panel agree that this court’s precedent permitting aggregation should be overturned.” 

In its own order, the court laid out the groundwork for the nation’s most conservative judges to overturn precedent that could have been used to right what a previous court called a “stark” and “jarring” violation of the Voting Rights Act. 

The entire 5th Circuit will rehear the case the week of May 13. If the court overturns its own minority-coalition district precedent, the VRA will be stripped of yet another key protection and Black and Latino voters in Galveston will be without recourse for a map the court itself admitted was properly decided at the district court level. 

The 5th Circuit also agreed to rehear an important redistricting case out of Louisiana. 

At the end of January, the nation’s most conservative circuit court voided a decision that protected fair state Supreme Court representation for Black voters in Louisiana when it decided to rehear a case challenging the state’s Supreme Court districts.

A consent decree is currently in place to ensure Black voters are represented on the state’s Supreme Court and ultimately led to Louisiana’s first Black Supreme Court justice.

Today, the Supreme Court’s seven justices are elected through partisan elections for ten-year terms to represent specific districts. Black voters have the opportunity to elect a candidate of their choice in District 7, which covers Orleans Parish. 

In 2021, Republican attorney general, Jeff Landry, asked the district court that facilitated the 1992 consent decree to dissolve it, but the district court declined to take such a drastic measure after finding that the agreement was still necessary to ensure compliance with the Voting Rights Act. 

In October 2023, three judges on the 5th Circuit also affirmed this decision, agreeing with the lower court that the consent decree is still very much necessary for Voting Rights Act compliance as “the State provided no evidence, plans, or assurances of compliance with Section 2 of the VRA in the event that the Consent Judgment is terminated.” 

Landry asked the entire 5th Circuit to rehear the case and dissolve the agreement. Again, in a rare move, the 5th Circuit agreed to rehear the case en banc and voided a key pro-democracy decision. 

If the 5th Circuit decides to dissolve the consent decree in its rehearing, Black voters in Louisiana will be harmed as representation on the Supreme Court will be threatened. If the 5th Circuit were to rule in favor of Republican officials, it could be yet another critical blow to the Voting Rights Act. Oral argument before the entire 5th Circuit will also take place the week of May 13.

Sometimes the practices that seem innocuous can lead to harmful consequences for voters. 

While there is nothing inherently malicious about a court using its procedures, the alarming rate of rehearings of pro-democracy decisions (three this year alone), show that this court is using its procedure to harm voters. Democracy Docket previously sounded the alarm on Republicans exploiting the circuit’s procedure in these cases, the 5th Circuit appears to be taking Republican officials up on their offers and seems willing to rehear decisions that are not favorable for Republicans. 

At the heart of each of these cases, citizens are fighting to have their voices heard. Unfortunately, this new trend reveals that when the court issues decisions that are good for voters, the court’s most conservative forces are doing everything they can to erase any progress.