Musing That Racism Isn’t As Bad As It Was, 5th Circuit Mulls Further Neutering Voting Rights Act

UNITED STATES - NOVEMBER 15: James C. Ho, judge for the 5th U.S. Circuit Court of Appeals, testifies during his Senate Judiciary Committee confirmation hearing in Dirksen Building on November 15, 2017. (Photo By Tom ... UNITED STATES - NOVEMBER 15: James C. Ho, judge for the 5th U.S. Circuit Court of Appeals, testifies during his Senate Judiciary Committee confirmation hearing in Dirksen Building on November 15, 2017. (Photo By Tom Williams/CQ Roll Call) MORE LESS
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Conservatives on the 5th Circuit Court of Appeals occasionally sounded like Fox News talking heads Tuesday as they weighed whether coalitions composed of multiple minority groups are protected under the Voting Rights Act.

“Has the world not changed from a racial standpoint?” “Would you agree that discrimination in favor of a race — preferring a race — is the same thing as discrimination against other races?” the judges asked.

The right-wing judges’ dismissal of these voters’ need for protection — a “seat at the table,” said Chad Dunn, an attorney for the disenfranchised voters — sits in sharp contrast next to the ruling from the district court. 

“[T]his is not a typical redistricting case. What happened here was stark and jarring,” wrote U.S. District Judge Jeffrey Vincent Brown, a Trump appointee. “The Commissioners Court transformed Precinct 3 from the precinct with the highest percentage of Black and Latino residents to that with the lowest percentage. The circumstances and effect of the enacted plan were mean-spirited and egregious given that there was absolutely no reason to make major changes to Precinct 3.”

A mix of Black and Latino voters had been represented by one Galveston, Texas county commissioner for 30 years, until the county wiped the precinct — Precinct 3 — off the map in 2021. It did so, the U.S. government notes in its brief supporting the coalitions, at only one public meeting in a far-flung, tiny annex, where the “aggressive” judge threatened to expel attendees who were crammed into the hallway.

The case has become a vehicle for one of the most potent, new threats against the already diminished Voting Rights Act: the argument that only single minority groups, and not politically likeminded minority coalitions, get the VRA’s protection from being stretched and cracked out of any meaningful voting power. The argument was raised in a redistricting case out of Georgia too, but the district judge set it aside late last year as having not been sufficiently briefed. 

A panel of judges on the notoriously conservative 5th Circuit in November of last year upheld the Texas district court’s ruling — begrudgingly.

“That precedent establishes the validity of so-called minority-coalition claims like those brought in this case,” the panel wrote, adding: “But the court’s decisions in this respect are wrong as a matter of law.”

In other words: The judges are bound to follow their circuit’s precedent, that the coalitions do get VRA protection. But that precedent, they insist, is wrong and should be overturned.

The panel called for a rehearing of the case en banc, arguments for which the full circuit heard Tuesday. 

The few liberal judges on the court stepped in occasionally to underscore the danger of further limiting the scope of the once-great civil rights legislation, which has been chipped away at by a decade and a half of Supreme Court rulings.

Judge Stephen Higginson, an Obama appointee, pressed Galveston’s attorney, Joseph Nixon, on the concern that “your theory would allow discrimination as long as it affects two groups instead of one.”

“I’m particularly worried about whether you’re gonna be asking courts to engage in race science in one of two ways: Either courts will now have to delineate racial singularity — which I would think would be impossible for 6 million Americans who are Afro-Latino — or courts would have to exclude mixed groups, say Asian Americans, on the theory that Filipino Americans have different interests than Chinese Americans,” he added.

Judge Dana Douglas, a Biden appointee, asked Nixon a pointed question to underscore the animating force of the VRA.

“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, so how does that square with your argument?” she asked.

The merits of the arguments are unlikely to outweigh the conservatives’ numbers; Tuesday’s arguments were heard by 12 judges appointed by Republican presidents to four by Democratic ones. The case is likely headed to the Supreme Court. 

Judge James Ho, always eager to raise his profile as one of the most infamous Trump appointees, took Tuesday’s opportunity to raise another even more dangerous threat to the VRA: the argument that individual citizens cannot sue to bring vote dilution cases, despite decades of doing so. Right-wing litigants have been trying out the argument more aggressively, positing that only the U.S. attorney general — and not the typical coalition of individual voters backed by voting rights groups — can challenge gerrymanders. 

“You’re aware that Judge Strauss on the 8th Circuit said that there is no private cause of action at all — you have not argued that?” Ho asked Nixon, name-checking another Trump appointee. 

Ultra-conservatives such as Ho clearly read this moment as the time to strike, given the Roberts’ Court’s historic hostility to the law once considered a bulwark against regimes crafted to keep minority voters underrepresented and powerless. 

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