Fifth Circuit looks at racial impact in Galveston County voting maps

(CN) — An en banc Fifth Circuit examined Galveston County’s redistricting maps Tuesday, in a case where Black and Latino voters claim the maps are racially gerrymandered.

The full bench of the New Orleans-based federal appeals court heard arguments from the county and the plaintiffs, which include the voters, several local NAACP branches, the League of Latin United American Citizens and the Biden administration.

Together, the plaintiffs claim the Galveston County Commissioners Court redistricting map, adopted in 2021, eliminated a precinct in which Black and Latino residents voted as a coalition in favor of a Democratic candidate. For 24 years, Stephen Holmes was that candidate. He represented the area and served as the county’s only Black Democratic commissioner.

They have argued throughout this consolidated case that the map violates Section 2 of the Voting Rights Act, which prohibits discrimination based on race, color or membership of a language minority group in voting practices.

This past October, U.S. District Court Judge Jeffery Brown, a Donald Trump appointee, determined the new maps were a “textbook example of racial gerrymandering” and ordered them to be redrawn.

The county commissioners appealed and secured a stay of Brown’s ruling. An en banc panel of the Fifth Circuit ruled this past December that the maps could not be redrawn on the eve of primary and general election voting in 2024.

The case made its way up to the U.S. Supreme Court, where a majority of the justices declined to intervene and gave no reasoning for their decision. In dissent, the court’s three liberal justices said they would have stepped in and blocked the map from being used.

During Tuesday’s rehearing of the case, Joseph Nixon, an attorney representing Galveston County and partner at the firm Akerman LLP, urged the 16-member panel to reject the voters’ argument that the map violates Section 2 of the Voting Rights Act.

“Section 2 of the Voting Rights Act does not protect coalitions. Consequently, this court should reverse the trial court and render judgment for the defendants," Nixon told the panel.

There was a focus amongst the panel on whether Section 2 of the act applies to separate minority groups who have joined together to raise similar voter dilution claims. Nixon argued that the plain text of the statute does not support such a notion.

U.S. Circuit Judge Dana Douglas, a Joe Biden appointee, asked Nixon how his “argument squares with Section One of the Dictionary Act, which tells us to assume that words importing the singular include and apply to several persons, parties or things unless the statutory context indicates otherwise?”

Nixon said that there is nothing in the Dictionary Act that would require the court to look at a “protected class as protected classes.”

Plaintiffs’ attorney Chad Dunn, of the Austin firm Brazil & Dunn, told the judges that the Voting Rights Act does apply in this case. Furthermore, he said that a clear governmental interest in dismantling what was a performing minority district does not exist.

The Supreme Court has ruled in recent years that partisan gerrymandering is legal, which Galveston County claims it did in this case. However, racial gerrymandering has been deemed unlawful by the high court.

“Is it too much to ask for one seat at the table,” Dunn asked the panel. “Justice, in this case, is allowing these people to retain the one voice they have, the dignity of being able to be heard in the hall of government, [and] the majority will still control the policy issues of the day.”

U.S. Circuit Judge Jennifer Walker Elrod, a George W. Bush appointee, asked Dunn to respond to Nixon’s assertion that for a coalition of minority groups to be recognized under the Voting Rights Act, Congress would have had to expressly say as much. Dunn first offered that this case does not present such a question. Answering the question directly, the attorney said that the Supreme Court’s ruling in *Bostock v. Clayton County * made clear that civil rights legislation is intended to cover a broad amount of conduct.

Applying his rationale to the language in Section 2 of the Voting Rights Act, Dunn said, “The language itself is broad and the language says any person and it says people who are denied an equal opportunity to elect or nominate candidates of choice.”

In his rebuttal, Nixon said the county acted within its legal right to gerrymander the district based on party lines.

“The fact, in this case, is that in the Black [and] the Hispanic community, innumerable rights were [not] violated,” Nixon said. “Their political desire was thwarted, that’s what they are angry about, and they are trying to use [Section 2] to give them a remedy, which doesn’t exist.”

The panel did not say how or when it would rule, although both sides are expected to appeal — setting the issue up for a return to the Supreme Court even as another pivotal election looms.

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