Voting Rights Act Could Shift Control of Congress

In an August 1 decision on the redistricting of the Galveston, Texas, county commission, the U.S. Court of Appeals for the 5th Circuit issued a ruling that ends the political abuse of the Voting Rights Act by Democrats and their allies to create voting districts loyal to the Democratic Party instead of protecting the voting rights of minorities. The decision could also affect the political makeup of Congress and the state legislatures in Louisiana, Mississippi and Texas, the states under the 5th Circuit’s jurisdiction, by shifting dozens of seats from Democrats to Republicans.

In Petteway v. Galveston County, the appellate court concluded that Section 2 of the Voting Rights Act does not protect or “authorize coalition claims, either expressly or by implication.” Coalition districts are districts in which no single minority group constitutes a majority of the voters. Rather, in these districts, there is a combination of different racial, ethnic, or linguistic minority groups that constitute the majority of the voters.

Galveston County’s population is 58% white, 22.5% Hispanic, and 12.5% ​​black. Although the black population is concentrated in the center of the county, the Hispanic population is evenly distributed throughout the county. The county commission consists of five seats: four elected in specific districts and one elected at-large. Neither the black nor the Hispanic population in Galveston County is large enough and concentrated enough to form a single commission district in which either group constitutes the majority of voters in that particular district.

As a result, in 1991, the county created a coalition district that combined the Black and Hispanic population into a single district, which was represented by a Black Democrat in 2021. The other seats were all held by Republicans, including a Black Republican. However, in the 2021 redistricting, the county eliminated the coalition district, which had a Black citizen population of 31% and a Hispanic citizen population of 24%.

The NAACP and the Justice Department led by Attorney General Merrick Garland, along with a number of individual plaintiffs, sued Galveston, claiming it violated federal law because coalition districts are required by Section 2 of the Voting Rights Act.

But the appeals court disagreed, concluding that the minority coalition’s claims are inconsistent with the plain text of Section 2 and with “Supreme Court cases rejecting similar claims of vote dilution by a ‘submajority.'”

To understand this position, one must examine the text of Article 2 itself. It prohibits the use of any voting practice or procedure that “results in a denial or limitation of the right of any citizen… to vote on account of race or colour, or in violation of provisions protecting linguistic minorities.” A violation occurs if the electoral process “is not equally open to the participation of members of a category of citizens” defined by race, colour or membership in a linguistic minority, “to the extent that its members are less able to participate in the political process and to elect representatives of their choice.”

The appeals court emphasized that Article 2 protects “a class” in the singular, not the plural. Moreover, Article 2 requires a showing that the electoral process is not equally open to participation “by members of the class.” a class “citizens,” not “classes” of citizens.

Thus, Section 2 protects members of a single class of citizens, such as blacks or Hispanics, but not political coalitions or alliances between those different racial groups. “A class,” the Court said, “cannot be construed to encompass two distinct minority groups.” Section 2 “makes this clear by linking the law’s protection of the right to vote to the particular race, color, or minority language of citizens.”

The court noted that Section 2 provides that “the extent to which members of a protected class have been elected to office…is a circumstance” that should be taken into account in determining whether the votes of that protected class have been diluted.

This provision “makes sense only if it is limited to a specific racial or linguistic minority group.” As the Court put it, Hispanics in Houston would not “see citywide elected black politicians as evidence against any dilution of Hispanic voters. The election of black officials would be an irrelevant ‘circumstance’ in determining whether a state or political subdivision dilutes the strength of Hispanic voters.”

There was no reason to refer to the legislative history of the Voting Rights Act, the court said, because “the text of Section 2 is clear.” In any event, the NAACP and DOJ’s argument on this issue, the court said, was “riddled with distortions and errors.” That’s not a very complimentary comment on the legal expertise of Garland’s Justice Department.

Although the Supreme Court did not address coalition districts, it rejected the claim that crossover districts are protected by Section 2. Crossover districts are districts in which a minority population, such as black voters, is combined with a minority of white voters, all Democrats, who then form a majority voting bloc in that district.

The appeals court pointed with appreciation to the Supreme Court’s decision in Bartlett v. Strickland (2009), in which the Supreme Court held that granting a Section 2 claim “in these circumstances would grant minority voters ‘the right to preserve their strength for the purpose of forging a beneficial political alliance’ with voters outside the minority group.” But Section 2 does not “give special protection to a minority group’s right to form political coalitions.” The Supreme Court’s decision in Bartlett, the 5th Circuit said, “disfavors the plaintiffs’ preferred interpretation of Section 2.”

In making that decision, the court overturned its own 1988 decision, Campos v. City of Baytown, which recognized coalition districts. However, the appeals court said that decision was “remarkable for its unpersuasive reasoning and the magnitude of its error.”

“Plaintiffs,” the court said, “have provided no compelling rationale for this court to adhere to Campos.”

The judges concluded by warning the court that it:

(N)e remain at the forefront of allowing litigation, not mandated by law or the Supreme Court, whose primary effects are to (a) supplant legislative redistricting by elected representatives with judicial fiat; (b) encourage the counting of citizens based on race and ethnicity; and (c) replace the fundamental principle of democratic majority rule with balkanized interests.

There are three important things to keep in mind about this decision. First, while it concerns Galveston County Commission districts, the Court’s decision that coalition districts composed of combined black and Hispanic populations are not required by the Voting Rights Act applies to all types of political districts in Louisiana, Mississippi, and Texas, from city council to congressional seats.

That could flip dozens of political seats from Democrats to Republicans. In Texas alone, according to a New York Post article in May covering oral arguments in the case, there are “at least five coalition House districts” represented by Democrats, including “the most famous of them, Houston’s downtown 18th District, long held by the recently deceased Rep. Sheila Jackson Lee.”

Second, this decision ends the abuse of the Voting Rights Act, at least in the 5th Circuit, to protect the interests of the Democratic Party. Section 2 was intended to end racial discrimination and vote dilution, not to protect and ensure the success of alliances between different groups of voters.

Third and finally, the 5th Circuit Court of Appeals has now joined the 6th Circuit Court of Appeals, which covers Kentucky, Michigan, Ohio, and Tennessee, which held in 1996 that Section 2 did not apply to coalition districts. Perhaps the 11th Circuit Court of Appeals, which covers Alabama, Florida, and Georgia, and which followed the 5th Circuit Court of Appeals’ reasoning in Campos, will reconsider its own prior jurisprudence now that the 5th Circuit Court of Appeals has overturned Campos.

In fact, the 5th Circuit noted that it was unclear whether that was the law in the 11th Circuit since that court “ultimately ruled against the coalition on other grounds.”

Other circuits have resolved cases involving coalition districts without “discussing or deciding whether coalition claims are permissible,” the 5th Circuit said.

Ultimately, the Supreme Court will have to decide this issue, and it will depend, at least in this case, on whether the NAACP and the Justice Department will appeal. Given the Supreme Court’s previous decision in Bartlett on crossover districts, if I were a betting man, I would bet against any appeal.

Editor’s Note: Galveston County was represented by the Public Interest Legal Foundation, of which the author is a board member.