A ‘mean-spirited’ Texas map goes before a conservative appeals court that could make it a new standard

By Tierney Sneed, CNN

(CNN) — Conservative judges on the federal appeals court that oversees a large swath of the South questioned a longstanding legal mandate in the circuit that allows multiple minority groups to join together to seek representation under the Voting Rights Act.

Judge Edith Jones of the 5th US Circuit Court of Appeals said that if it was “obvious” the Voting Rights Act contemplated so-called coalition districts that aim to bolster minority voting power, the Supreme Court would have said so in previous rulings about the law.

“But it isn’t,” she told Justice Department attorney Nicolas Riley, who is defending the current precedent and how it was used by a Donald Trump-appointed judge to strike down the county commission map of Galveston, Texas.

The trial judge agreed with the Biden administration – and the civil rights groups and Black and Hispanic voters that also sued over the plan – that the commission map drawn by Republicans was a “clear violation” of the Voting Rights Act.

US District Judge Jeffrey Vincent Brown last year struck down the new map, saying that how the commissioners went about their “obliteration” of a majority-minority district was “stark,” “jarring,” “egregious” and “mean-spirited.”

The 5th Circuit has already voted to pause Brown’s ruling, as it considers reversing the coalition district precedent. The new GOP-drawn map will be in effect for the 2024 election.

During Tuesday’s arguments before the full slate of circuit judges, an attorney for the challengers, Chad Dunn, said that the Galveston case was not an apt vehicle for overturning the precedent.

Galveston is arguing the text of the Voting Rights Act, in its reference to a “class of citizens” in the relevant provision, did not contemplate multiple racial or ethnic groups joining together to bring redistricting cases under the law. Justice Department Attorney Nicolas Reily argued Tuesday that “class” in that part of the statute referred to the class of voters being harmed by racial discrimination, including when that discrimination was aimed at multiple racial groups at once.

Obama appointed Judge Stephen Higginson, questioning Galveston’s attorney Joseph Nixon, said ending coalition claims would force people of mixed racial or ethnic affiliations, such as Afro-Latinos, to choose one affiliation over another to be protected under the Voting Rights Act.

“I think you are actually helping clarify why we need a bright line,” Nixon said in response.

For roughly 30 years, Precinct 3 of Galveston’s county commission – the governing body of the county – was drawn to group together Black and Hispanic communities, which together make up nearly 39% of the county’s population and mostly vote for Democrats. After the 2021 Census, the Republican-led county commission broke up that district, locking in four majority-white districts instead.

Among the commission’s actions were to hold its lone meeting about its redistricting plans 27 miles away from the county courthouse that usually hosts major commission meetings and to exclude the only Black member at the time (and its only Democrat) from the map-drawing process.

However, due to some eyebrow-raising procedural maneuvering last year by 5th Circuit Court – with the Supreme Court refusing to intervene – the contested map will be in effect for the 2024 election as the 5th Circuit considers reversing the 35-year-old precedent that was the foundation of Brown’s ruling.

The lawyers spearheading the lawsuit told CNN that the case shows exactly why the Voting Rights Act contemplated scenarios in which coalitions of multiple ethnic groups are harmed by discriminatory map-drawing. Overturning the current precedent, they say, will encourage map-drawers across the South to break up majority-minority districts made up of multiple ethnic or racial groups.

“Recognizing that communities of color often suffer the effects of discrimination together is what’s at stake here,” said Valencia Richardson, a legal counsel for the Campaign Legal Center, which is representing voters challenging the map.

Their opponents argue that Congress did not intend for multiple “classes” of minorities to be considered together when assessing a map’s Voting Rights Act compliance. They claim that the requirement for coalition districts has exacerbated the seemingly endless litigation over redistricting.

“At the heart of this case is the meaning of the Voting Rights Act: Was it meant to restore justice and return things to where they belong, or, is it a political weapon that improperly uses race to distribute power?” said J. Christian Adams, an attorney representing Galveston County, in an email to CNN.

Black and Latino voices ‘extinguished,’ judge says

The 2021 map split up the long-established Precinct 3, spreading those minority voters across the four total commission precincts. White voters – who overwhelmingly vote Republican in the county – now make up a sizeable majority of all four districts.

“Looking – as this court must – at the totality of the circumstances, it is stunning how completely the county extinguished the Black and Latino communities’ voice on its commissioners court during 2021’s redistricting,” Brown said in his decision.

Brown, who was confirmed by the Senate in 2019 with only Republican support, has previously ruled against the Biden administration in legal disputes over federal Covid-19 vaccine mandates and environmental regulations.

The 2021 redistricting cycle was the first that the county was not subject to the so-called preclearance under in the Voting Rights Act, which had required that localities with a history of racially discriminatory voting practices get the approval of the Justice Department or a federal court when adopting new political maps.

Brown noted how the commission’s Republican members – led by the county’s chief executive, County Judge Mark Henry – departed from the county’s usual redistricting process in a number of ways.

The Galveston Republicans opted to shut the public – and the commissioner representing Precinct 3, the commission’s sole Democrat and, at the time, its only member of color – out of most of the process, the judge found. The commission opted to have only one public meeting about the redistricting plan, compared to the five held after the 2010 Census.

That lone 2021 meeting was also not held at the centrally located county courthouse typically used for major commission business, but at a building 27 miles from Galveston that was much smaller and more difficult to access. An estimated 150 to 200 people showed up to the meeting, with many of them – including elderly residents and people in wheelchairs – left lining the hallways due to the lack of space.

At the meeting, Henry and the other commissioners showed “a disregard for public input from the minority communities and those critical of the enacted plan’s discriminatory effect,” Brown wrote.

In 2022, a second Black member joined the commission, filling a seat left open by the death of a Republican member representing a precinct of mostly white voters. The new commissioner, Robin Armstrong, is a Republican. The federal judge in the redistricting case said that his addition to the commission was irrelevant to the legal dispute.

“His precinct is predominantly Anglo, and several witnesses – including Commissioner Armstrong himself – testified that he would not be the candidate of choice of Black and Latino voters,” the judge said. Armstrong did not respond to CNN’s request for comment.

If the appeals court overturns its precedent and rules against a coalition district mandate, such a decision will be deeply felt in the three states covered by the circuit– Texas, Louisiana and Mississippi – which were required to get federal pre-approval for their maps before a 2013 Supreme Court ruling dismantled that mandate.

Adams, who is also president and general counsel of the Public Interest Legal Foundation, told CNN via email that “the 5th Circuit should make clear that race cannot be used for political gain” and he pointed to how other courts “have not allowed these submajority districts.”

“The law speaks in singular terms, not stacked minority groups,” he said.

Supreme Court has already sided with county

After the 5th Circuit put Brown’s ruling on pause, the challengers to Galveston’s new map asked the Supreme Court last year to block the 2021 plan for the coming election – a request that was rejected over the dissent of the three liberal justices.

The 5th Circuit “went far beyond its proper authority,” Justice Elena Kagan, joined by the court’s other two liberals, wrote, because the appeals court was imposing a map “acknowledged to violate current law … on the theory that the Circuit might someday change that law.”

The current 5th Circuit precedent allowing coalition districts dates back to 1988.

At the trial in the Galveston case, the challengers had to show that the Black and Hispanic voters had a shared history of suffering discrimination in the county and that they had consistently voted for the same candidates.

“If racial groups lack the cohesion derived from common experiences and interests, their claims will fail of their own accord. That outcome need not be assumed in advance,” the Justice Department wrote in court filings.

The county argues that because Galveston’s Latino and Black populations are, individually, too small to bring a successful VRA claim, the lawsuit must fail.

In court filings, it said that there was no “indication in the language or history of the VRA that it is was meant to protect two or more minority groups together, when neither could raise such a claim individually.”

Chad Ennis – the vice president of the Honest Elections Project, a conservative group that works on voting issues and that filed friend of the court briefs calling for the end of coalition districts – told CNN that legal disputes over coalition districts end up being “a battle of the experts.”

Ennis said that the current precedent was fueling protracted court fights over redistricting.

“Trying to figure out, ‘Well can we lump [multiple groups] together? Should we lump them together?’ becomes very difficult,” he said.

Supporters of the 5th Circuit precedent say that the Galveston case shows how rare it is for these types of coalition claims to be successful in the first place, and that the dispute exemplifies the kind of discriminatory behavior the VRA was intended to address.

“If defendants get their way, it would essentially greenlight the destruction of majority minority districts throughout the South,” said Hilary Harris Klein, a senior counsel for Southern Coalition for Social Justice, who is representing some of the challengers in the lawsuit. “It would be devastating for minority voters as devastating as it was for Galveston’s Black and Latino voters.”

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