JOSEPH THOMAS; VERNON AYERS; MELVIN LAWSON, Plaintiffs - Appellees
PHIL BRYANT, Governor of the State of Mississippi, ; DELBERT HOSEMANN, Secretary of State of the State of Mississippi, both in the official capacities of their own offices and in their official capacities as members of the State Board of Election Commissioners, Defendants - Appellants
REVISED March 25, 2019
from the United States District Court for the Southern
District of Mississippi
DENNIS, CLEMENT, and COSTA, Circuit Judges.
COSTA, CIRCUIT JUDGE
district court found that the boundaries for Mississippi
State Senate District 22 dilute African-American voting
strength and prevent those citizens from having the equal
opportunity "to participate in the political process and
to elect representatives of their choice" that the
Voting Rights Act guarantees. 52 U.S.C. § 10301(b). To
remedy the violation, the district court switched 28
precincts between District 22 and a bordering district. The
Governor and Secretary of State seek a stay of the final
District 22 lies in the heart of the Mississippi Delta. Those
unfamiliar with the state's geography might think that
the Mississippi Delta is in the southern portion of the state
that is closer to the mouth of the Mississippi River. But the
"Delta" refers not to the outlet of that mighty
river into the Gulf of Mexico, but to the alluvial plain
between the Mississippi River and the Yazoo River. John M.
Barry, Rising Tide: The Great Mississippi Flood of 1927 and
How it Changed America 96 (1997). It is located in the
northwest section of Mississippi and looks like an
"elongated diamond." Id. The district
court recited this colorful description of its boundaries:
"The Mississippi Delta begins in the lobby of the
Peabody Hotel [in Memphis] and ends on Catfish Row in
Vicksburg." David L. Cohn, God Shakes Creation (1935).
sediment that the Mississippi River deposited in this region
over the millennia made Delta soil some of the richest in the
world. Barry, supra, at 97. And that soil made the
Delta one of the leading cotton-producing areas in the world.
One historian compared the influence the Delta once held over
global cotton prices to the modern influence of Saudi Arabia
over oil prices. Sven Beckert, Empire of Cotton: A Global
History 113 (2014).
before agriculture could prosper in the Delta its forests of
hardwood trees had to be cleared. Slaves were forced to begin
that process, and emancipated slaves finished it in the
latter part of the nineteenth century. Since that time,
African-Americans have been a majority in the Delta. In the
early twentieth century, they made up almost 90% of the
region's population. Barry, supra, at 125
(noting that in 1908 the Delta had "a black population
of at least 171, 209" and "a white population of
24, 137"). The Great Migration to the north reduced the
African-American percentage, but they remain a sizeable
majority in the region.
course, for most of their time laboring in the Delta,
African-Americans could not vote. The Voting Rights Act
changed that. It has resulted in numerous African-Americans
being elected to office in the Delta. Indeed, the State of
Mississippi has more African-American elected officials than
any other state. U.S. Census Bureau, Statistical Abstract of
the United States: 2011, 258 (130th ed.).
places like the state legislature, African-Americans have
still not achieved political power in Mississippi that comes
close to their share of the population. This case involves a
claim that one state senate district contributed to that
underrepresentation by diluting the voting strength of
African-Americans that Delta demographics and geography
should otherwise support.
22 includes all or part of five Delta counties: Bolivar,
Humphreys, Sharkey, Washington, and Yazoo. It also includes
parts of one non-Delta county: Madison. The addition of the
white-majority Madison County precincts in the last
redistricting reduced the African-American percentage in
District 22. Overall the district still has an
African-American majority, but just barely at
50.7%. Without the non-Delta precincts from
Madison County, that percentage would be much higher.
candidate preferred by the black majority did not prevail in
the 2015 election. The losing candidate those voters did
prefer (Joseph Thomas), along with two voters (Vernon Ayers
and Melvin Lawson), brought this lawsuit in 2018 alleging
that the district violated of Section 2 of the Voting Rights
month, the district court held a bench trial and agreed. It
concluded that the threshold Gingles factors for
establishing vote dilution existed. The African-American
population is "sufficiently large and geographically
compact" to constitute a majority with electoral power
in the district; that racial group is politically cohesive;
but the white population voted as a bloc to prevent
African-Americans from electing their chosen candidate.
LULAC v. Perry, 548 U.S. 399, 425 (2006). The bloc
voting by both racial groups was stark: in 10 elections
within district 22, the candidate favored by
African-Americans received between 82% and 93% of their vote
but only between 8% and 19% of the white vote.
district court then followed the statutory directive to
consider the "totality of circumstances" in
determining whether African-Americans "have less
opportunity than other members of the electorate to
participate in the political process and to elect
representatives of their choice." 52 U.S.C. §
10301(b); LULAC, 548 U.S. at 425-26. It credited
Plaintiffs' expert's analysis of voter participation
as more rigorous and concluded that African-American turnout
was depressed in off-year elections-that is, odd-year
elections without federal races-which is when Mississippi
elects its legislature. The district court also highlighted
the persistent representation gap in the Mississippi Senate,
as well as substantial socioeconomic differences between
black voters and white voters in the district.
finding a Voting Rights Act violation, the court initially
declined to order a remedy so "the Mississippi
Legislature [could] consider whether to redraw the District
and extend the candidate qualification deadline."
Although the primary and general elections were months away,
the deadline for candidate filing was March 1.
flurry of procedural moves followed at warp speed. Three days
after the court made its trial findings, the Governor and
Secretary of State (Defendants) filed a motion a motion to stay
with the district court and also filed an appeal, arguing
that the ruling was an appealable interlocutory injunction.
Less than a week later, they asked this court to stay the
district court's ruling. That same day, Plaintiffs asked
the court to extend the qualification deadline in District 22
and bordering District 23 (the other district affected by the
proposed remedy) by two weeks. Later that day, the district
court ordered Defendants to update it on any progress, if
any, in legislative redrawing of District 22.
next day, Defendants filed a brief opposing Plaintiffs'
motion to extend the qualification deadline, in which they
stated that they had contacted the leadership of the
legislative chambers. The Senate leaders had said that
"should the stay motions pending before [the district
court] and the Fifth Circuit be denied, the Senate desire[d]
the opportunity to enact a new redistricting plan redrawing
Senate District 22." Late that same day, the district
court ruled that, because the legislature was unwilling to
act, the first map drawn by one of Plaintiffs' experts
would be adopted as the boundaries of Districts 22 and 23.
The court also moved the qualification deadline to March 15
for the two affected senate districts. The court also
declined to enter a stay and entered final judgment.
final judgment caused our court to dismiss the appeal of the
preliminary ruling. Thomas v. Bryant, 2019 WL 994034
(5th Cir. Feb. 28, 2019). But by that time the Defendants had
already appealed from the final judgment, and not long after
that they sought a stay pending the new appeal, which is the
motion before this panel.
the effect of the final judgment: It switches some precincts
between Districts 22 and 23. It extends the candidate filing
deadline to March 15. In terms of other upcoming deadlines,
the primary election is August 6, with a June 22 deadline to
send ballots to troops overseas. The general election is
stay Defendants seek is an extraordinary remedy. Nken v.
Holder, 556 U.S. 418, 437 (2009) (Kennedy, J.,
concurring). It is also an equitable one committed to this
court's discretion. Id. at 433; Ruiz v.
Estelle, 666 F.2d 854, 856 & n.4 (5th Cir. 1982).
Four factors guide the exercise of our discretion: 1) whether
the applicant has made a strong showing of likelihood to
succeed on the merits; 2) whether the movant will be
irreparably harmed absent a stay; 3) whether issuance of a
stay will substantially injure other interested parties; and
4) where the public interest lies. Nken, 556 U.S. at
434. The first two factors are usually the most important.
Id.; ODonnell v. Goodhart, 900 F.3d 220,
223 (5th Cir. 2018).
case, the likelihood of success ends up being dispositive.
That is because Defendants can establish irreparable harm. A
court order preventing enforcement of a state law, including
the drawing of legislative lines, constitutes that harm.
Abbott v. Perez, 138 S.Ct. 2305, 2324 n.17 (2018).
And that injury may be irreparable in light of the meaningful
possibility (but not certainty) that a full appeal cannot be
decided in time to provide Defendants relief before this
year's senate elections. But Plaintiffs face the same
risk that the appellate ruling will prove futile should this
court grant a stay. And the injury they seek to
prevent-holding an election under an unlawful plan with
discriminatory effects-is also, it should go without saying,
a serious one. Veasey v. Abbott, 830 F.3d 216, 270
(5th Cir. 2016) (en banc) ("It would be untenable to
permit a law with a discriminatory effect to remain in
operation for that election."); cf. Reynolds v.
Sims, 377 U.S. 533, 585 (1964) ("[I]t would be the
unusual case in which a court would be justified in not
taking appropriate action to insure that no further elections
are conducted under the invalid plan."). So
Defendants' entitlement to a stay turns on whether they
have a strong likelihood of success.
first address Defendants' attempt to make that showing
with a jurisdictional argument. They contend that a
three-judge court should have decided this case. The statute
says that a "district court of three judges shall be
convened when otherwise required by Act of Congress, or when
an action is filed challenging the constitutionality of the
apportionment of congressional districts or the apportionment
of any statewide legislative body." 28 U.S.C. §
2284(a). The Voting Rights Act does not require three-judge
courts for Section 2 cases (notably it does for Section 5
cases, 52 U.S.C. § 10304(a)), so Defendants focus on the
latter part of the statute. They contend that
"constitutionality" modifies only challenges to
apportionment of congressional districts, not challenges to
apportionment of state legislatures. On their reading, any
challenge to state legislative redistricting-including the
statutory Voting Rights Act one asserted here-requires a
requested a three-judge panel late in the litigation, a week
before trial. Failing to request such a panel in their answer
may have forfeited the issue unless it is a jurisdictional
requirement. The three-judge statute has conflicting language
on whether it is one. It begins by saying "a district
court of three judges shall be convened" for specified
cases. 28 U.S.C. § 2284(a). That mandatory language
sounds jurisdictional. So does the statute's prohibition
on a single judge taking certain actions, including granting
injunctive relief. Id. § 2284(b)(3). But the
statute also says that the procedure for convening a
three-judge court kicks in "[u]pon the filing of a
request for three judges." Id. §
2284(b)(1). That does not sound jurisdictional. If the
requirement is jurisdictional, then the single district judge
first assigned the case would seemingly have an obligation to
convene a three-judge panel even if a party does not ask for
these conflicting statutory signals, the leading federal
procedure treatise is ambivalent about whether Section 2284
is jurisdictional. See 17A Charles Alan Wright et
al., Fed. Prac. & Proc. § 4235, at 206-08 (3d ed.
2007). But apparently the courts that have considered the
question- including ours in a nonbinding decision-have
treated Section 2284 as jurisdictional. See Kalson v.
Patterson, 542 F.3d 281, 287 (2nd Cir. 2008); Armour
v. Ohio, 925 F.2d 987, 989 (6th Cir. 1991) (en banc);
LULAC of Texas v. Texas, 318 Fed.Appx. 261, 264 (5th
Cir. 2009). That consensus in the caselaw means that
forfeiture is an obstacle Defendants will likely be able to
overcome on appeal.
delay in raising this issue does, however, say something
about its merits. At the outset of this lawsuit, it was not
obvious to Defendants (or Plaintiffs or the district judge
for that matter) that its exclusively statutory claims
required a three-judge court. Indeed, no reported case has
ever used a three-judge panel for a case challenging district
lines only under Section 2 of the Voting Rights Act. See
Rural W. Tenn. African-American Affairs Council v.
Sundquist, 209 F.3d 835, 838 (6th Cir. 2000) (noting
case reassigned to single judge after dismissal of
constitutional and Section 5 claims); Chestnut v.
Merrill, 2019 WL 338909 (N.D. Ala. 2019) (rejecting
argument that a single judge could not hear Section 2
challenge); Bone Shirt v. Hazeltine, 336 F.Supp.2d
976, 980 (D. S.D. 2004) (same as Rural West);
Old Person v. Brown, 182 F.Supp.2d 1002, 1003 (D.
Mont. 2002) (single judge hearing Section 2 challenge);
see also Armour, 925 F.2d at 989 (stating the
jurisdictional test for Section 2284 as whether "there
exists a non-frivolous constitutional challenge to
the apportionment of a statewide legislative body"
(emphasis added)). That no court has adopted Defendants'
reading of the three-judge statute in the more than four
decades it has been on the books alone seems enough to
prevent them from showing a strong likelihood of succeeding
on this issue. To be sure, only the Chestnut opinion
from earlier this year addressed an argument like the one
Defendants make. But that is again telling: Before this year,
it apparently had never dawned on a judge or party in a
Section 2-only state redistricting case that a three-judge
panel might be required. And that is because the most
straightforward reading of the three-judge statute is that it
applies only when the "constitutionality" of
apportionment is being challenged.
does the dissent, adopting the argument of an amicus, think
the three-judge statute applies to what is only a statutory
challenge when no court has ever taken that view? One
word-the "the" that precedes "apportionment of
any statewide legislative body." 28 U.S.C. §
2284(a). Inclusion of that article means, in their view, that
"constitutionality" applies only to what
immediately follows it: challenges to the "apportionment
of congressional districts." If
"constitutionality" does not also modify the
"apportionment of any statewide legislative body,"
id., then any challenges to those districts,
including statutory ones, require a three-judge panel.
textual argument is a dispute about application of the
"series modifier" canon of construction. It
normally means that a modifier ("constitutionality"
in Section 2284) applies to an entire series of parallel
terms. See Scalia & Garner, Reading Law: The
Interpretation of Legal Texts 147 (2012). The district court
concluded that principle supports reading the statute as
applying to constitutional challenges to apportionment of
both congressional and state legislative seats. But an amicus
supporting the defendants argues the "the" coming
before "apportionment of any statewide legislative
body" breaks the series modifier. The amicus notes that
a "determiner" word, such as the "the" in
Section 2284(a), is an indication that a modifier should not
reach the second element. See id. at 148-49.
inferring that "the" was meant to cut off the
"constitutionality" modifier ignores what may be
the most important teaching about the series modifier canon
from the Scalia and Garner book on statutory interpretation:
"Perhaps more than most of the other canons, this one is
highly sensitive to context." Id. at 150. That
context supports the natural reading that courts have long
given it: that "constitutionality" modifies both
"the apportionment of congressional districts" and
"the apportionment of any statewide legislative
body." That Congress wanted the two phrases to sound the
same-"the apportionment of congressional districts"
and "the apportionment of any statewide legislative
body" are word-for-word identical, with the exception of
the type of district that they reference-is consistent with
how ordinary people speak and write. See Lockhart v.
United States, 136 S.Ct. 958, 970 (2016) (Kagan, J.,
dissenting). To illustrate this, consider what a reader would
think after seeing the following in the newspaper: "The
NCAA is investigating the recruiting practices of the
football program and the basketball program." As with
the three-judge statute, the final "the" may not be
necessary. But would it make the reader think the
investigation into the basketball program is not limited to
recruiting violations, but also might include point shaving
or ticket scalping violations? Of course not. The
dissent's textual argument about the three-judge statute
is just as detached from common usage.
more, giving so much significance to "the" runs
counter to another point Justice Scalia made about statutory
interpretation: that Congress "does not . . . hide
elephants in mouseholes." Whitman v. Am. Trucking
Ass'n, 531 U.S. 457, 468 (2001). The historical
development of the three-judge statute-that is, statutory
history as opposed to the more controversial legislative
history Defendants rely on-shows why it would have been so
significant and anomalous to require three-judge panels for
statutory claims. The statute was first enacted in the
aftermath of Ex parte Young to require three judges
to hear what Congress thought would be an increasing number
of suits challenging state laws "upon the ground of the
unconstitutionality of such statute." 28 U.S.C. §
2281 (1970); see generally David P. Currie, The
Three-Judge District Court in Constitutional Litigation,
32 U. Chi. L. Rev. 1, 5-8 (1964). When courts later struck
down many New Deal reforms, one of the only aspects of
President Roosevelt's court-packing plan to become law
was a measure also requiring three-judge panels for suits
seeking to enjoin "any Act of Congress for repugnance to
the Constitution of the United States." 28 U.S.C. §
2282 (1970); see Wright, Fed. Prac. & Proc.
§ 4234, at 194-95. Both laws' focus on only
constitutional challenges made sense as striking down
democratically enacted laws is "the gravest and most
delicate duty" courts are "called on to
perform." Nw. Austin Mun. Util. Dist. No. One v.
Holder, 557 U.S. 193, 204 (2009) (referring to striking
down an Act of Congress (quoting Blodgett v. Holden,
275 U.S. 142, 147-48 (1927) (Holmes, J., concurring))). The
idea of requiring three judges for this "class of cases
of special importance" was to "assure more weight
and greater deliberation by not leaving the fate of such
litigation to a single judge." Phillips v. United
States, 312 U.S. 246, 249-50 (1941) (first quotation
from Ex parte Collins, 277 U.S. 565, 567 (1928)).
But in the mid-1970s, Congress decided to scrap just about
all of the three-judge regime because it was burdening the
Supreme Court and lower courts and had resulted in procedural
complexities. See Wright, Fed. Prac. & Proc.
§ 4234, at 195-98; Kalson, 542 F.3d at 287
(noting that the 1976 Act "vastly reduced the category
of cases for which a three-judge court is mandated"). It
nonetheless decided to retain the procedure for a small set
of important cases: constitutional challenges to
redistricting for congressional and state legislative seats,
then-recent phenomena in the aftermath of the revolutionary
one person, one vote line of cases. See, e.g., Reynolds
v. Sims, 377 U.S. 533 (1964). If Congress had intended
to expand the statute it was otherwise contracting by
applying it for the first time to statutory challenges there
were certainly better ways to do it than by stealthily
inserting an extra "the."
the statute in the way Defendants suggest does not make sense
for another reason: Why would Congress require three judges
to hear statutory claims challenging state legislative
redistricting but not congressional redistricting? The
dissent posits, without citing any authority, that perhaps
federalism concerns would explain such a difference. But
there are also strong federalism concerns with how a state
chooses to divvy up its citizens into congressional
districts. In fact, contemporary critics of the initial
judicial foray into review of legislative apportionment
viewed courts' redrawing of congressional district as
even more intrusive on traditional state prerogatives than
judicial redrawing of state legislative districts. That is
because of the view that Article I, Section II of the
Constitution grants "States . . . plenary power to
select their allotted Representatives in accordance with any
method of popular election they please, subject only to the
supervisory power of Congress." Wesberry v.
Sanders, 376 U.S. 1, 23 (1964) (Harlan, J., dissenting).
other problem with the dissent's theory-that Congress in
1976 had a special concern with statutory challenges to the
drawing of state legislative districts-is that it fails to
grapple with the rarity of Section 2 challenges to
redistricting at that time. It was then not even clear that
Section 2 provided a private right of action. City of
Mobile v. Bolden, 446 U.S. 55, 60 & n.8 (1980)
(assuming without deciding such a suit could exist). A few
years later the Supreme Court held Section 2 did not prohibit
discriminatory effects which meant it provided no guarantee
beyond what the Constitution already did. See id.
And the typical pre-1982 Section 2 claim that courts did
consider was a challenge to at-large electoral systems, not
the line drawing of single member districts. See, e.g.,
id. In other words, there was no practice of statutory
challenges to state legislative apportionment that Congress
needed to address in 1976.
up, the dissent would give this much weight to the
"the" that comes before "reapportionment of
any statewide legislative body": Insertion of that
article would require three-judge panels for exclusively
statutory claims- followed by direct appeal to the Supreme
Court, 28 U.S.C. § 1253-when the three-judge regime
Congress was contracting in 1976 never did. It would require
those three-judge panels only for statutory challenges to
apportionment of state legislative seats, not congressional
ones. And it would do all this to address statutory
challenges to apportionment of state legislatures when those
claims hardly existed in 1976. An elephant indeed.
dissent contends that there might have been clearer ways to
emphasize that the statute is limited to constitutional
challenges. Dissenting Op. at 12. But if Congress intended to
include statutory-only challenges within the reach of the
general three-judge statute for the first time, there were
many easy ways to make that clear. This brings up a final
point on the jurisdictional question. To the extent there is
ambiguity, the longstanding principle that
"congressional enactments providing for the convening of
three-judge courts must be strictly construed" comes
into play. Allen v. State Bd. of Elections, 393 U.S.
544, 561 (1969); Phillips, 312 U.S. at 250 (noting
the three-judge statue should be read narrowly because of its
impact on the Supreme Court docket and the burdens of
convening three-judge courts).
rule of construction, the text of the three-judge statute,
its lineage, and the caselaw applying it all favor the
district court's view that three judges are not required
for a claim raising only statutory challenges to state
legislative redistricting. Defendants thus face a steep climb
in convincing this court to be the first to ever read the
statute as applying to a case challenging a district's
lines only under Section Two of the Voting Rights Act.
also seek a stay on the ground that we are likely to reverse
the district court's ruling that District 22 dilutes the
voting power of African-Americans. The standard of review
poses an obstacle to undoing the factual findings that led
the court to conclude that the district violates Section 2.
An appellate court "will not set aside" Section 2
factual findings "unless [it is] left with the definite
and firm conviction that a mistake has been committed."
Magnolia Bar Ass'n, Inc. v. Lee, 994 F.2d 1143,
1147 (5th ...