Galveston County, Texas, redistricting fight returns to the Supreme Court

Minority Galveston County voters say the Fifth Circuit should not be allowed to nullify their victory in a vote dilution case.

FILE - In this June 17, 2021, file photo, Sam Collins III, left, and others celebrate at the Juneteenth historical marker in Galveston, Texas, after President Joe Biden signed the Juneteenth National Independence Day Act into law. Only Texas, Virginia and New York headed into Thursday's signing of the federal Juneteenth law with the holiday on the books to be celebrated in 2021.
(Jennifer Reynolds/The Galveston County Daily News via AP, File)

HOUSTON (CN) — Three Black Democratic residents of Galveston County, Texas, on Friday asked the Supreme Court to stop the county from using a Republican-drawn voting map for next year’s elections.

In the two months since U.S. District Judge Jeffrey Brown, a Donald Trump appointee, directed the Galveston County Commissioners Court, its five-member elected executive board, to redraw voting precincts, the Fifth Circuit has taken the litigation on a dizzying roller coaster ride.

An 11-6 en banc order Thursday by the appellate court was its latest twist.

The majority decreed that Galveston County, for next year's March 5 primary and Nov. 5 general elections, must use a voting map Brown had determined violated Section 2 of the Voting Rights Act.

They stayed Brown’s mandate for the county to employ a remedial map that highly resembled the precinct boundaries from 2011 until the county’s GOP leaders redrew them in November 2021.

Brown picked the map after county officials declined his invitation to submit a revised voting plan and instead sought relief from the Fifth Circuit.

With early voting for the March primary nearly three months away, U.S. Circuit Judge Andrew Oldham wrote on Thursday for the Fifth Circuit’s majority, all of whom were appointed by Republican presidents, that Brown cannot alter election rules on the “eve of an election,” and it is “far too late for a federal court to tinker with the machinery of a state election and to displace the original map.”

The plaintiffs in the case, consolidated from three lawsuits challenging the county’s map, include the Biden administration and local branches of the NAACP and the League of United Latin American Citizens.

On Friday morning, one group of plaintiffs filed an emergency application with the Supreme Court asking Justice Samuel Alito, who handles emergency requests from Fifth Circuit cases, to vacate the appellate court’s stay and let Brown’s remedy map be used for the 2024 elections.

“This is a case study on how a court of appeals should not handle election litigation,” wrote the challengers' attorney Chad Dunn, of the Austin firm Brazil & Dunn.

Dunn complained that the Fifth Circuit itself had delayed the case to the brink of the Dec. 11 filing deadline for commissioner court candidates through a “series of conflicting and confusing orders.”

A three-judge panel of the Fifth Circuit affirmed Brown’s initial map redraw order on Nov. 10, noting that it was bound to do so by the court’s 35-year-old precedent. But on Nov. 28 a majority of the appellate court’s 17 active-duty judges voted to rehear the case en banc next May, thereby tossing out the panel decision upholding Brown’s ruling.

Amid these actions the Fifth Circuit also prevented Brown’s order from taking effect with several administrative stays.

After the plaintiffs asked the Supreme Court to force the Fifth Circuit to clarify if a stay was still in effect, the Fifth Circuit’s chief justice confirmed on Nov. 30 that Brown’s injunction dictating use of a remedial map was no longer stayed.

But the Galveston County defendants lobbied the Fifth Circuit for another stay, and it obliged them Thursday, leading the plaintiffs to ask Alito to intervene.

In addition to their Voting Rights Act Section 2 claims, the plaintiffs asserted in their consolidated lawsuits that Galveston County had violated the 14th and 15th Amendments by enacting a a racially gerrymandered voting plan.

The Fifth Circuit is focused on the Section 2 facet. A group of its jurists believe its long-standing precedent allowing coalitions of minority groups — like the Black and Latino voters in the Galveston County case — to bring Section 2 vote dilution claims is wrong.

There is already a circuit split on this issue: Two other federal appellate courts have issued rulings in agreement with the Fifth Circuit’s case law that coalition claims are viable, and the Sixth Circuit has taken the opposite position.

The Galveston County plaintiffs say in Friday’s filing that even if the Fifth Circuit judges eager to buck precedent are correct that Congress did not intend for Section 2 to permit coalition claims, they will still win on their 14th and 15th Amendment arguments.

Though Brown did not reach those constitutional claims, he signaled in his redraw order he was in accord with the plaintiffs, calling the county’s map a “textbook example of racial gerrymandering.”

The plaintiffs said — and Brown agreed after a 10-day bench trial in August — the county’s map was a GOP bid to orchestrate an election defeat of Precinct 3 Commissioner Stephen Holmes, the only Black Democrat on the commissioners court, who is in his sixth term and has held the seat for more than 20 years.

Calling the new voting plan “mean-spirited,” “jarring,” “stunning” and “egregious,” Brown said it had eliminated minority voters’ ability to elect a candidate of their choice in any precinct.

He stated “race and politics are inextricably intertwined” in Galveston County, which has a population of 355,600, because white residents vote for Republicans, while Black and Latino residents vote for Democrats.

Dunn, the plaintiffs’ counsel, echoed Brown’s findings in Friday’s emergency application to the Supreme Court.

“The county — in a ‘mean-spirited’ and racially motivated scheme sought to ‘extinguish the Black and Latino communities’ voice on its commissioners court,’” Dunn wrote.

“The harm from this sordid affair is irreparable if the enacted map is permitted to take effect,” he added.

Holmes did not respond to a message seeking comment on the litigation by press time.

Galveston County's seat is the city of Galveston, which is on a Gulf of Mexico barrier island 50 miles southeast of Houston. Texas' most populous city and a major shipping and immigration hub in the latter half of the 1800s, Galveston was decimated in 1900 by a hurricane that killed 6,000 people.

In response, the city had a 17-foot seawall built to protect residents' homes from storm surges.