Petteway v. Galveston Cnty.

111 F.4th 596

Honorable Terry PETTEWAY; Honorable Derreck Rose; Honorable Penny Pope, Plaintiffs-Appellees, v. GALVESTON COUNTY, Texas; Mark Henry, in his official capacity as Galveston County Judge; Dwight D. Sullivan, in his official capacity as Galveston County Clerk, Defendants-Appellants, United States of America, Plaintiff-Appellee, v. Galveston County, Texas; Galveston County Commissioners Court; Mark Henry, in his official capacity as Galveston County Judge, Defendants-Appellants, Dickinson Bay Area Branch NAACP; Galveston Branch NAACP; Mainland Branch NAACP; Galveston LULAC Council 151; Edna Courville; Joe A. Compian, Plaintiffs-Appellees, v. Galveston County, Texas; Mark Henry, in his official capacity as Galveston County Judge; Dwight D. Sullivan, in his official capacity as Galveston County Clerk, Defendants-Appellants.

No. 23-40582

United States Court of Appeals, Fifth Circuit

FILED August 1, 2024

Appeal from the United States District Court for the Southern District of Texas USDC Nos. 3:22-CV-117, 3:22-CV-57, 3:22-CV-93, Jeffrey Vincent Brown, U.S. District Judge

Chad Wilson Dunn, Esq., Brazil & Dunn, Austin, TX, Mark P. Gaber, Alexandra Copper, Simone Tyler Leeper, Valencia Richardson, Campaign Legal Center, Washington, DC, Neil G. Baron, Dickinson, TX, Bernadette Reyes, UCLA Voting Rights Project, Los Angeles, CA, for Plaintiff-Appellee Honorable Terry

Petteway, Honorable Derreck Rose, Honorable Penny Pope.

Matthew Nicholas Drecun, Erin Helene Flynn, Esq., Bruce I. Gear, U.S. Department of Justice, U.S. Department of Justice, Washington, DC, Daniel David Hu, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX for Plaintiff-Appellee United States of America.

Hilary Harris Klein, Adrianne Spoto, Southern Coalition for Social Justice, Durham, NC, Joaquin Gonzalez, San Antonio, TX, Richard Mancino, Aaron E. Nathan, Willkie Farr & Gallagher, L.L.P., New York, NY, Mimi Murray Digby Marziani, Texas Civil Rights Project, Austin, TX, Hani Mirza, Advancement Project, Washington, DC, Nickolas A. Spencer, Spencer & Associates, P.L.L.C., Houston, TX, for Plaintiff-Appellee Dickinson Bay Area Branch NAACP, Galveston Branch NAACP, Mainland Branch NAACP, Galveston LULAC Council 151.

Hilary Harris Klein, Adrianne Spoto, Southern Coalition for Social Justice, Durham, NC, Sarah Xiyi Chen, Texas Civil Rights Project, Austin, TX, Joaquin Gonzalez, San Antonio, TX, Richard Mancino, Aaron E. Nathan, Willkie Farr & Gallagher, L.L.P., New York, NY, for Plaintiff-Appellee Edna Courville, Joe A. Compian.

Joseph R. Russo, Jr., Jordan Raschke Elton, Angela K. Olalde, Greer, Herz & Adams, L.L.P., Galveston, TX, Christian Adams, Joseph M. Nixon, Public Interest Legal Foundation, Incorporated, Alexandria, VA, Paul A. Ready, Ready Law Firm, P.L.L.C., Houston, TX, for Defendant-Appellant Galveston County, Texas, Mark Henry, in his official capacity as Galveston County Judge, Dwight D. Sullivan, in his official capacity as Galveston County Clerk, Galveston County Commissioners Court.

Paul David Brachman, Anita Liu, Jordan Orosz, Paul, Weiss, Rifkind, Wharton & Garrison, L.L.P., Washington, DC, for Amici Curiae The Brennan Center for Justice at New York University School of Law, Asian American Legal Defense and Education Fund.

T. Russell Nobile, Judicial Watch, Incorporated, Gulfport, MS, for Amicus Curiae Judicial Watch, Incorporated.

Kyle Douglas Hawkins, Lehotsky Keller Cohn, L.L.P., Austin, TX, for Amicus Curiae National Republican Redistricting Trust and Honest Elections Project.

Brianne Jenna Gorod, Constitutional Accountability Center, Washington, DC, for Amicus Curiae Constitutional Accountability Center.

Stuart Naifeh, NAACP Legal Defense & Educational Fund, Incorporated, New York, NY, for Amicus Curiae NAACP Legal Defense and Educational Fund, Incorporated

Pooja Chaudhuri, Lawyers' Committee for Civil Rights Under Law, Washington, DC, for Amicus Curiae Lawyers' Committee for Civil Rights Under Law.

William A. Brewer, III, Esq., Brewer, Attorneys & Counselors, Dallas, TX, for Amicus Curiae Brewer Storefront, P.L.L.C.

Before Richman, Chief Judge, and Jones, Smith, Barksdale, Stewart, Elrod, Southwick, Haynes, Graves, Higginson, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, Douglas, and Ramirez, Circuit Judges.

ON PETITION FOR REHEARING EN BANC

Edith H. Jones, Circuit Judge, joined by Richman^*, Chief Judge, and Smith, Barksdale, Elrod, Southwick, Willett, Ho^[†], Duncan, Engelhardt, Oldham, and Wilson, Circuit Judges:

The issue in this en banc case is whether Section 2 of the Voting Rights Act authorizes coalitions of racial and language minorities to claim vote dilution in legislative redistricting. In an increasingly multiracial and multi-language polity, the importance of this issue is obvious. We overrule this court's decision in Campos v. City of Baytown, 840 F.2d 1240, 1244 (5th Cir. 1988), and its progeny, which allowed such claims to be maintained.

In 2021, the Galveston County Commissioners Court enacted a new districting plan for county commissioner elections. The enacted plan eliminated the county's sole majority-minority precinct, which had existed since 1991. The majority-minority population in that precinct was composed of two distinct minority groups, blacks and Hispanics.

In 2022, three sets of plaintiffs challenged the enacted plan in federal court, claiming that it diluted the votes of a coalition of black and Hispanic voters in violation of Section 2 of the Voting Rights Act. See 52 U.S.C. § 10301. The district court conducted a bench trial and rendered judgment in Plaintiffs' favor. In doing so, it applied this court's decision in Campos v. City of Baytown, which held that distinct minority groups may aggregate their populations for purposes of vote dilution claims under Section 2. 840 F.2d at 1244. This holding was critical to Plaintiffs' Section 2 claim because neither the black population nor the Hispanic population of Galveston County is large enough on its own to "constitute a majority" in a reasonably configured county commissioner precinct. See Thornburg v. Gingles, 478 U.S. 30, 50, 106 S. Ct. 2752, 2766, 92 L.Ed.2d 25 (1986) (describing this first precondition to vote dilution claims under Section 2).¹

The panel decision affirmed the district court's judgment but called for the en banc court to reconsider Campos's holding authorizing what are often called "minority coalition claims." Having vacated the panel opinion for rehearing en banc, we conclude that coalition claims do not comport with Section 2's statutory language or with Supreme Court cases interpreting Section 2, particularly Bartlett v. Strickland, 556 U.S. 1, 129 S. Ct. 1231, 173 L.Ed.2d 173 (2009). We OVERRULE Campos, REVERSE the district court's judgment, and REMAND for further proceedings.

I. BACKGROUND

A. Factual Background

According to the 2020 census, Galveston County, Texas, has a total population of 350,682. The citizen voting-age population of the county is 58 percent white, 22.5 percent Hispanic, and 12.5 percent black. The Hispanic population is evenly dispersed throughout the county, while the black population is concentrated in the center of the county, i.e., in Texas City, La Marque, Dickinson, Hitchcock, and the city of Galveston.

Galveston County is governed by a county commissioners court, which consists of one county judge, elected county-wide, and four county commissioners elected from single-member precincts. See TEX. CONST. art. V, §§ 16, 18(b). The current county judge is a Republican. Three of the commissioners are also Republicans, and one is a Democrat. One of the Republican commissioners is a black man. The only Democrat, Commissioner Stephen Holmes, is also a black man.

Commissioner Holmes represents Precinct 3. From 1991 to 2021, Precinct 3 was the county's only majority-minority precinct, and its borders encompassed the center of the county. The majority-minority population of Precinct 3 was composed of both black and Hispanic citizens of voting age. As of 2020, blacks and Hispanics together amounted to 58 percent of the precinct's citizen voting-age population.

The county undertook redistricting efforts in 2021 after receiving the 2020 census data. Two redistricting maps, or plans, were proposed during the redistricting process. Map 1, a "minimal change" plan, retained Precinct 3 as a majority-minority precinct, with a 31 percent black and 24 percent Hispanic citizen voting-age population. Map 2, an "optimal change" plan, did not contain a majority-minority precinct and reduced the minority population of Precinct 3 to the lowest of the four precincts. The Commissioners Court voted to enact Map 2. Only Commissioner Holmes voted against the enacted plan.

The Petteway Plaintiffs, the NAACP Plaintiffs, and the United States challenged the enacted plan in federal court. All three sets of plaintiffs claimed that the enacted plan violated Section 2 of the Voting Rights Act by diluting the votes of Galveston County's black and Hispanic voters. The Petteway Plaintiffs and NAACP Plaintiffs also pleaded that the enacted plan was (1) intentionally discriminatory in violation of the Fourteenth and Fifteenth Amendments and (2) racially gerrymandered in violation of the Fourteenth Amendment.

Following a ten-day bench trial, the district court found that the enacted plan violated Section 2 and enjoined Galveston County from using the plan. "[T]he enacted plan," the district court wrote, "illegally dilutes the voting power of Galveston County's Black and Latino voters by dismantling Precinct 3, the county's historic and sole majority-minority commissioners precinct." In reaching this decision, the district court followed Campos, 840 F.2d at 1244, which allows distinct minority groups to aggregate their populations when alleging vote dilution under Section 2. The district court declined to reach the intentional discrimination and racial gerrymandering claims brought by the Petteway Plaintiffs and NAACP P...