Galveston County redistricting case draws divide among federal appeals court judges

A statue of a returning Confederate soldier is shown on Thursday, April 21, 2022, in Galveston. The monument has stood in front of the Galveston County Courthouse since 1911. (Annie Mulligan For The Texas Tribune, Annie Mulligan For The Texas Tribune)

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A full panel of federal appellate court judges was split over whether a coalition of voters of color should be afforded the same protections under the Voting Rights Act as a single group of protected citizens during Tuesday’s oral arguments over a Galveston County redistricting case.

The hearing before the 5th U.S. Circuit Court of Appeals was not tasked with determining if Galveston County commissioners discriminated against Black and Latino voters by dismantling a district made of a majority of voters of color. Rather, the judges are considering whether a coalition of Black and Latino voters should be granted the same protections as a single racial or language minority group under the 1965 Voting Rights Act.

Some appellate judges on Tuesday warned that extending protections to groups of minority voters would result in an avalanche of discrimination claims.

But others were open to including coalitions in the Voting Rights Act as a means of preventing voter dilution.

“What the Supreme Court has said is that the Voting Rights Act should be interpreted in a manner that provides the broadest scope possible in combating racial discrimination,” Judge Dana Douglas said.

The original case stems from the question of whether local officials violated the rights of Black and Latino voters when they redrew a precinct of the Galveston County Commissioners Court primarily composed of voters of color.

Nicolas Riley, a lawyer for the Justice Department, argued that Galveston County’s redistricting efforts harmed both Black and Latino voters. Thus, those two groups of voters should be interpreted as a single “class” under the Voting Rights Act given they were similarly injured. Riley rejected the definition of class in the federal voting legislation to refer to a single racial group.

Judge Edith Brown Clement said this interpretation would extend the precedent set by Thornburg v. Gingles, a 1986 Supreme Court case that affirmed that a North Carolina redistricting plan had unlawfully discriminated against Black voters. If the Justice Department’s interpretation of coalition was correct, then the Supreme Court would have stated so in previous rulings, Clement said.

“If it was obvious, the supremes would have said, ‘Oh, this is what it is,’” she said.

Riley argued that the question at the heart of that case did not consider the question of coalition voters and that the Supreme Court has not clearly ruled on this issue.

Clement said it appears that the world has changed “from a racial standpoint” in the decades since the federal voting law was passed.

“If we allow coalitions, there will be more claims, will there not?” Clements asked. She suggested it would cause chaos for legislatures attempting to draw district maps.

Clement also questioned the League of United Latin American Citizens’ ability to represent Hispanic voters in Texas as polls show Latino voters are increasingly moving to the right. A University of Houston survey published in January found a majority of Texas Latino voters support former Republican President Donald Trump over President Joe Biden, a Democrat. Recent census numbers show that Latinos officially make up the biggest share of the Texas population.

Over decades, voters of color in Galveston County built a political coalition in Precinct 3 and coalesced around the only Democrat on the Commissioners Court. The precinct only reached majority-minority status when both Black and Latino voters were considered collectively.

But in the redistricting cycle after the 2020 census, GOP officials redrew Precinct 3. The new map split the diverse pockets of four cities, where most of the county’s Black population lives, into smaller districts limited to the northwestern end of the county that includes majority-white communities.

Residents challenging the map have been joined by three local NAACP branches, a local LULAC chapter and the U.S. Department of Justice, which found the Commissioners Court’s move to dismantle Precinct 3 so grievous that it stepped in four months after the map was adopted.

Last October, a federal judge appointed by Trump ruled the county’s redistricting maps diluted the voting power of Black and Latino residents — a violation of Section 2 of the Voting Rights Act which prohibits diluting voters based on race, color or language minority status.

One month later, a three-judge panel from the 5th Circuit agreed that the new maps diluted the power of minority voters based on previous 5th Circuit precedent. But in the panel’s November opinion, the judges said the precedent allowing minority coalitions was wrongly decided and asked for an en banc hearing over the issue. This question was before the full panel of 5th Circuit judges on Tuesday.

Joseph Nixon, the lawyer for Galveston County, argued that the Voting Rights Act was written to only bar discrimination against a single group of voters, such as Black or Latino Americans. If the court allowed the coalition argument to stand, Nixon considered, then what is there to stop groups from “stacking” different pockets of voters of color to achieve certain political outcomes.

But judges took issue with this interpretation, considering the realities of mixed-race Americans who belong to more than one racial group.

“You're creating a rule that will ask the impossible racially, both for people who have mixed minorities or for mixed groups that have different interests,” Judge Stephen Higginson said. “What happens to an Afro-Latino [American]? Does that person have to choose which minority interests they affiliate with to get protection?”

Nixon responded by asserting that the U.S. Census requires individuals to self-identify as a single racial category. He suggested that requiring legislators who draw district maps to coalesce different groups would force undue burdens on redistricting efforts and courts hearing discrimination claims.

“Otherwise you turn legislators into psychics and courts into political accountants,” Nixon said.

Judge Douglas asked Nixon how his argument squared with part of the 1871 Dictionary Act that assumes singular words apply to several persons, parties or things unless context indicates otherwise.

Nixon said there is nothing in the statute to suggest the court should interpret a singular protected class as a group of protected classes. He argued that the scope of the Voting Rights Act has already been clearly defined in the precedent set by Thornburg v. Gingles. He added that Congress has chosen not to add coalition claims to the Voting Rights Act, though Nixon noted there are two legislative efforts in the U.S. House and Senate to address these issues.

The 5th Circuit did not indicate when it would issue a ruling on the case.

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