In re Landry

83 F.4th 300

IN RE Jeff LANDRY, In his official capacity as the Louisiana Attorney General; Kyle R. Ardoin, in his official capacity as Louisiana Secretary of State, Petitioners.

No. 23-30642

United States Court of Appeals, Fifth Circuit

FILED September 28, 2023

Appeal from the United States District Court for the Middle District of Louisiana USDC Nos. 3:22-CV-211, 3:22-CV-214, Shelly Deckert Dick, U.S. District Judge

Jason Brett Torchinsky, Edward Mark Wenger, Esq., Holtzman Vogel Baran Torchinsky & Josefiak, P.L.L.C., Washington, DC, Angelique Duhon Freel, Esq., Assistant Attorney General, Jeffrey M. Wale, Esq., Assistant Attorney General, Louisiana Department of Justice, Baton Rouge, LA, Phillip Michael Gordon, Holtzman Vogel Baran Torchinsky & Josefiak, P.L.L.C., Haymarket, VA, Carey Thompson Jones, Esq., Elizabeth Baker Murrill, Esq., Assistant Attorney General, Office of the Attorney General for the State of Louisiana, Baton Rouge, LA, Jeffrey M. Wale, Esq., Assistant Attorney General, Louisiana Department of Justice, Baton Rouge, LA, for Petitioner Jeff Landry.

Jason Brett Torchinsky, Edward Mark Wenger, Esq., Holtzman Vogel Baran Torchinsky & Josefiak, P.L.L.C., Washington, DC, Phillip Michael Gordon, Holtzman Vogel Baran Torchinsky & Josefiak, P.L.L.C., Haymarket, VA, Phillip Strach, Nelson Mullins Riley & Scarborough, L.L.P., Raleigh, NC, John Carroll Walsh, Shows, Cali & Walsh, L.L.P., Baton Rouge, LA, for Petitioner Kyle R. Ardoin.

Stuart Naifeh, Legal Defense & Educational Fund, Incorporated, New York, NY, John Nelson Adcock, Adcock Law, L.L.C., New Orleans, LA, Jared Evans, Isabel Sara Rohani, NAACP Legal Defense & Educational Fund, Incorporated, Washington, DC, Adam Savitt, Paul, Weiss, Rifkind, Wharton & Garrison, L.L.P., New York, NY, Tiffany Alora Thomas, Harvard Law School, Election Law Clinic, Cambridge, MA, for Respondents Press Robinson, Edgar Cage, Dorothy Nairne, Edwin Rene Soule, Alice Washington, Clee Earnest Lowe, Davante Lewis, Martha Davis, Ambrose Sims, National Association for the Advancement of Colored People Louisiana State Conference, Power Coalition for Equity and Justice.

Renee Chabert Crasto, Adams & Reese, L.L.P., Baton Rouge, LA, Andree Matherne Cullens, Joseph Elton Cullens, Jr., Esq., Walters, Papillion, Thomas, Cullens, L.L.C., Baton Rouge, LA, Abha Khanna, Elias Law Group, L.L.P., Seattle, WA, Jacob D. Shelly, Elias Law Group, L.L.P., Washington, DC, for Respondents Edward Galmon, Sr., Ciara Hart, Norris Henderson, Tramelle Howard.

Before Jones, Higginson, and Ho, Circuit Judges.

By Edith H. Jones, Circuit Judge:

Louisiana's Attorney General has filed this request for mandamus relief seeking to vacate the district court's hearing scheduled to begin on October 3 and require the district court to promptly convene trial on the merits in this congressional redistricting case. We GRANT IN PART, ORDERING the District Court to VACATE the October Hearing.

The reasons for this grant of relief are as follows:

Redistricting based on section 2 of the Voting Rights Act, 52 U.S.C. § 10301, is complex, historically evolving, and sometimes undertaken with looming electoral deadlines. But it is not a game of ambush.

Since 1966, the Supreme Court has repeatedly reminded lower federal courts that if legislative districts are found to be unconstitutional, the elected body must usually be afforded an adequate opportunity to enact revised districts before the federal court steps in to assume that authority. In Reynolds v. Sims, the Court stated that "legislative reapportionment is primarily a matter for legislative consideration and determination."¹ In subsequent cases,

[t]he Court has repeatedly held that redistricting and reapportioning legislative bodies is a legislative task which the courts should make every effort not to preempt. When a federal court declares an existing apportionment scheme unconstitutional, it is therefore, appropriate, whenever practicable, to afford a reasonable opportunity for the legislature to meet constitutional requirements by adopting a substitute measure rather than for the federal court to devise and order into effect its own plan.

Wise v. Lipscomb, 437 U.S. 535, 540, 98 S. Ct. 2493, 2497, 57 L.Ed.2d 411 (1978) (citations omitted). This is the law today as it was forty-five years ago.²

The district court did not follow the law of the Supreme Court or this court. Its action in rushing redistricting via a court-ordered map is a clear abuse of discretion for which there is no alternative means of appeal.³ Issuance of the writ is justified "under the circumstances" in light of multiple precedents contradicting the district court's procedure here.

This case was remanded after the Supreme Court stayed lower court proceedings to decide Alabama v Milligan, 599 U.S. 1, 143 S. Ct. 1487, 216 L.Ed.2d 60 (2023). Ardoin v. Robinson, — U.S. —, 142 S. Ct. 2892, 213 L.Ed.2d 1107 (2022) (cert. dismissed as improvidently granted and stay vacated by — U.S. —, 143 S. Ct. 2654, — L.Ed.2d — (2023)). The district court here had held, in June 2022, after an expedited preliminary injunction proceeding, that Louisiana's congressional districts violate section 2, requiring an additional majority black congressional district. Robinson v. Ardoin, 605 F. Supp. 3d 759, 766 (M.D. La. 2022). The district court then ordered the state legislature to reconfigure such an additional district within five legislative days. Robinson v. Ardoin, 37 F.4th 208, 232 (5th Cir. 2022). Landry pursued an immediate appeal and a motion to stay in this court. This court denied a stay, id., but expedited the appeal—until the Supreme Court entered its stay. Ardoin v. Robinson, 142 S. Ct. at 2892.

A year later, the Supreme Court's stay was lifted, Ardoin v. Robinson, 143 S. Ct. at 2654, and the parties completed briefing the merits of the preliminary injunction, which another panel of this court will hear in oral argument on October 6.

Undeterred by the pendency of appeal on the merits, the district court opted to go ahead on October 3-5 with an expedited hearing to determine a court-ordered redistricting map. But the court provided merely five weeks for the state's preparation. No mention was made about the state legislature's entitlement to attempt to conform the districts to the court's preliminary injunction determinations.

This post-merits activity prompted the state to seek a writ of mandamus from this court pursuant to 28 U.S.C. § 1651. In this court, "mandamus will be granted upon a determination that there has been a clear abuse of discretion." In re Volkswagen of Am., Inc., 545 F.3d 304, 309 (5th Cir. 2008) (en banc). As "one of the most potent weapons in the judicial arsenal, three conditions must be satisfied" before mandamus may be issued. In re Gee, 941 F.3d 153, 157 (5th Cir. 2019) (quoting Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380, 124 S. Ct. 2576, 2587, 159 L.Ed.2d 459 (2004)). The Supreme Court has elaborated that:

First, the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires—a condition designed to ensure that the writ will not be used as a substitute for the regular appeals process. Second, the petitioner must satisfy the burden of showing that [his] right to issuance of the writ is clear and indisputable. Third, even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.

Cheney, 542 U.S. at 380-81, 124 S.Ct. 2576 (quotation marks and citations omitted).

After reviewing the mandamus factors, we conclude that the state is entitled to partial mandamus relief.

1. The state has no other means of relief and is not seeking to use mandamus as a substitute for appeal.

The only issue before this panel is the scheduling of the remedial hearing and potential scheduling for trial on the merits. The events leading to this writ application post-date the merits-only preliminary injunction by fifteen months. In ruling on this application, we do not discuss the merits. Likewise, the decision on the merits of a Section 2 violation of the Voting Rights Act has no direct relationship with nor factual nor legal overlap with the scheduling issues this panel confronts.

That this application presents an unusual posture for mandamus is not a contrivance of Landry or this panel but the result of the district court's unique rush to remedy when circumstances did not require it. Moreover, because this application is wholly different from the merits of the appeal, the state has no adequate remedy by way of appeal.

The plaintiffs respond that the state may adequately appeal following the decision formulating a court-ordered redistricting plan. That outcome would embarrass the federal judiciary and thwart rational procedures. Denying mandamus effectively means a two-track set of appeals on the merits and the court-ordered plan. No matter the outcome—or timing—of this court's merits panel determination, one side will seek relief in the Supreme Court. Similarly, the anticipated court-ordered redistricting plan will be appealed to this court and likely to the Supreme Court. And all of this will persist well into the 2024 election year. The likelihood of conflicting courts' scheduling and determinations will create uncertainty for the state and, more important, the candidates and electorate who may be placed into new congressional districts. In sum, while there is on paper a right to appeal whatever decision the district court renders on drawing its own redistricting maps, the paper right is a precursor to legal chaos.

2. Clear and Indisputable Right

The state contends that it has a clear right to relief because the court's remedial redistricting plan should not be ordered before it has a fulsome opportunity to defend itself on the merits of plaintiffs' section 2 claim.⁴ That the state lacked a full opportunity to mount a defense on the merits is likely...