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Thomas v. Bryant

United States Court of Appeals, Fifth Circuit

March 22, 2019

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

          Appeal from the United States District Court for the Southern District of Mississippi

          Before DENNIS, CLEMENT, and COSTA, Circuit Judges.


         A 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 judgment.


         Most of 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).

         The 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).

         But 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.

         Of 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.).

         But in 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.

         District 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%.[1] Without the non-Delta precincts from Madison County, that percentage would be much higher.

         The 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 Act.

         Last 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.

         The 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.

         After 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.

         A flurry of procedural moves followed at warp speed. Three days after the court made its trial findings, the Governor and Secretary of State (Defendants)[2] 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.

         The 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.

         The 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.[3]

         This is 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 November 5.


         The 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).

         In this 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.


         We will 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 three-judge panel.

         Defendants 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 it.

         Recognizing 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.

         Defendants' 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)).[4] 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.

         So why 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.

         The 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.[5] See id. at 148-49.

         But 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.

         What is 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."

         Reading 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).

         The 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.

         To sum 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.

         The 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).

         That 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.



         Defendants 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 ...

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