“[T]he concept of justiciability, as embodied in the political question doctrine, expresses the jurisdictional limitations imposed upon federal courts by the case or controversy requirement of Article III.” (cleaned up)
How later courts described this case
- “[T]he concept of justiciability, as embodied in the political question doctrine, expresses the jurisdictional limitations imposed upon federal courts by the case or controversy requirement of Article III.” (cleaned up)
- “The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.”
- describing the adoption of a staggered election system
- “The existence of high levels of racially polarized voting across Texas cannot be disputed, nor is there any indication that the levels of racially polarized voting are decreasing.” (footnote omitted)
Written by the judges who cited it.
The opinion
Case: 25-11055 Document: 77-1 Page: 1 Date Filed: 10/29/2025
United States Court of Appeals
for the Fifth Circuit
____________
No. 25-11055
____________
Winnie Jackson; Jarrett “Jay” Jackson; Celina Vasquez;
Duane Braxton; Nadia Bhular; Amjad Bhular; Cheryl
Mills Smith; Richard Canada,
Plaintiffs—Appellants,
versus
Tarrant County, Texas; Tarrant County
Commissioners Court; Tim O’Hare, in his official capacity as
Tarrant County Judge,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:25-CV-587
______________________________
Before Barksdale, Willett, and Duncan, Circuit Judges.
Don R. Willett, Circuit Judge:
Administering free and fair elections requires someone to set the rules
of the electoral road. Under our Constitution, that duty rests with the States
and their political subdivisions, which enjoy “considerable discretion in
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No. 25-11055
establishing rules for their own elections.” 1 That discretion reaches its height
in the redistricting process, for redistricting—like the broader electoral
system—“is primarily the duty and responsibility of the State through its
legislature or other body.” 2
Even so, that authority has limits. The Constitution itself draws them:
the Fourteenth and Fifteenth Amendments forbid racial discrimination in the
conduct of elections. Within those bounds, however, the power of States and
localities to fix district lines is broad—and ours is narrow. Unless a plaintiff
proves racial discrimination, federal courts must stay their hand, mindful that
“[t]he task of redistricting is best left to . . . legislatures, elected by the people
and as capable as the courts, if not more so, in balancing the myriad factors
and traditions in legitimate districting policies.” 3
Because judicial intervention in this realm is fraught, our review, while
exacting, must also be restrained. This case tests that balance.
* * *
Here, Tarrant County chose to redraw the precinct lines used to elect
its County Commissioners—and to do so mid-cycle. The Challengers, a
group of voters reassigned from one district to another, contend that the
County Commissioners Court redrew the lines to harm racial minorities.
They further argue that, even if partisanship rather than race drove the
decision, the County’s staggered elections justify our intervention despite
the general rule against policing partisan maps. We hold that the facts do not
_____________________
1
Vote.org v. Callanen, 89 F.4th 459, 480 (5th Cir. 2023).
2
See Chapman v. Meier, 420 U.S. 1, 27 (1975).
3
Abrams v. Johnson, 521 U.S. 74, 101 (1997).
2
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No. 25-11055
support the Challengers’ first argument, and the law does not support their
second.
Accordingly, we AFFIRM the district court’s denial of a preliminary
injunction.
I. Background
Under the Texas Constitution, each County Commissioners Court
acts as the county’s “principal governing body”—its nerve center of local
administration. 4 The Commissioners Court consists of four County
Commissioners and a County Judge. 5 Each Commissioner is elected by the
voters of one of the four “commissioners precincts,” 6 serving four-year
staggered terms so that elections occur in two precincts every
even-numbered year. 7 The County Judge serves the same four-year term but
is elected countywide. 8 In addition to its other “legislative, executive,
administrative, and judicial functions,” 9 the Commissioners Court holds a
_____________________
4
Comm’rs Ct. of Titus Cnty. v. Agan, 940 S.W.2d 77, 79 (Tex. 1997); see Tex.
Const. art. 5, § 18(b) (“[T]he County Commissioners Court . . . shall exercise such
powers and jurisdiction over all county business, as is conferred by this Constitution and
the laws of the State, or as may be hereafter prescribed.”).
5
Tex. Const. art. 5, § 18(b).
6
Id.
7
See id. (providing that a County Commissioner “shall hold his office for four years
and until his successor shall be elected and qualified”); Fashing v. El Paso Cnty. Democratic
Exec. Comm., 534 S.W.2d 886, 888–90 (Tex. 1976) (describing the adoption of a staggered
election system).
8
Tex. Const. art. 5, § 15.
9
Agan, 940 S.W.2d at 79.
3
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power both fundamental and fateful: the constitutional authority to draw—
and redraw—the four commissioners precincts. 10
“The Texas Constitution does not require counties to reapportion
commissioners’ precincts at any particular time, but only ‘from time to time,
for the convenience of the people.’” 11 To comply with the federal “one
person, one vote” principle announced in Gray v. Sanders, 12 states and their
political subdivisions must generally redistrict upon release of the decennial
census “to account for any changes or shifts in population.” 13 In 2021, the
Tarrant County’s Commissioners Court—home to Fort Worth and several
neighboring cities—retained a Texas-based law firm to assist with the
redistricting process. The same firm had guided the County’s redistricting
efforts after the 1990, 2000, and 2010 censuses.
The results from the 2020 census showed that, although Tarrant
County’s non-Hispanic white voting-age population had decreased by about
30,000 since the 2010 census, its overall voting-age population had increased
by more than 300,000. That growth, however, was distributed roughly evenly
_____________________
10
Article 5, Section 18(b) of the Texas Constitution requires commissioners
precincts to be created “in the manner provided for justice of the peace and constable
precincts.” Tex. Const. art. 5, § 18(b). Section 18(a), in turn, provides that “[a]
division or designation” of justice of the peace and constable precincts “shall be made by
the Commissioners Court.” Tex. Const. art. 5, § 18(a).
11
Abbott v. Mexican Am. Legis. Caucus, Tex. House of Representatives, 647 S.W.3d
681, 707 (Tex. 2022) (Hecht, C.J., dissenting) (quoting Tex. Const. art. 5, § 18(a)).
12
372 U.S. 368, 381 (1963) (“The conception of political equality from the
Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth,
Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one
vote.”).
13
Georgia v. Ashcroft, 539 U.S. 461, 488 n.2 (2003), superseded by statute on other
grounds, Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act
Reauthorization and Amendments Act of 2006, Pub. L. 109-246, 120 Stat. 577, as recognized
in, Ala. Legis. Black Caucus v. Alabama, 575 U.S. 254, 276 (2015).
4
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across the County’s four commissioners precincts. According to the law
firm’s Initial Assessment, continuing to use the existing precinct boundaries
would result in a maximum population deviation—defined as “the sum of
the percentage deviations from perfect population equality of the most- and
least-populated districts” 14—of just 1.97%—well below the 10% threshold
that “presumptively complies with the one-person, one-vote rule.” 15
Accordingly, although the Commissioners Court unanimously adopted a set
of redistricting criteria, it ultimately voted 4–1 to retain the same map
adopted after the 2010 census. In doing so, the Court rejected an alternative
map that proponents claimed would better “account[ ] for the growth of
minority communities” within the County.
On April 2, 2025, by a narrow 3–2 majority, the Commissioners Court
approved a legal-services contract with the Virginia-based Public Interest
Law Foundation (PILF) to manage a mid-decade redistricting in advance of
the 2026 election. Unlike its predecessor, PILF did not recommend that the
Commissioners Court adopt criteria to guide the redistricting process. The
County first posted five potential maps on its website and held public
hearings in each precinct. After the hearings—and just five days before the
Commissioners Court was scheduled to vote on a new map—two additional
maps, Maps 6 and 7, were posted on the County’s website. At a
Commissioners Court meeting on June 3, 2025, one commissioner moved to
adopt Map 7, while another moved to postpone the vote to allow the public
more time to review the proposal. The motion to postpone failed, 3–2, and
Map 7 was adopted by that same narrow margin.
_____________________
14
Evenwel v. Abbott, 578 U.S. 54, 60 n.2 (2016).
15
Id. at 60; see Brown v. Thomson, 462 U.S. 835, 842 (1983) (“Our decisions have
established, as a general matter, that an apportionment plan with a maximum deviation
under 10% falls within this category of minor deviations.”).
5
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Under the old map, two precincts were majority Republican and two
were majority Democrat. Under Map 7, by contrast, three precincts are
majority Republican and only one is majority Democrat. In addition, while
the previous map had two majority-minority districts and two majority-white
districts, Map 7 alters that mix to one majority-minority district and three
majority-white districts.
Because County Commissioners serve staggered terms, the
redistricting reshuffled voters among precincts with different election cycles.
Some voters who previously resided in precincts scheduled to elect a County
Commissioner in 2026 were reassigned to precincts that will not hold such
elections until 2028, while others moved in the opposite direction. In total,
approximately 9.8% of Tarrant County’s voting-age population was shifted
from precincts slated for 2026 elections to those that will not hold
Commissioner elections until 2028.
Democratic voters are disproportionately represented among those
moved to precincts that will not vote until 2028: Although Vice President
Kamala Harris recorded 46.7% of the Tarrant County vote in the 2024
presidential election, Harris voters make up 62.7% of those transferred to a
precinct that will not hold a County Commissioner election until 2028.
Comparable patterns emerge using results from the 2024 U.S. Senate race or
the 2022 gubernatorial election instead.
The voters shifted to precincts without a 2026 election also include
disproportionate shares of Tarrant County’s black and Latino voting-age
populations. Although black and Latino Americans comprise 17.9% and 26.3%
of Tarrant County’s voting-age population, they represent 31.2% and 31.9%,
respectively, of those transferred to precincts not holding a County
Commissioner election until 2028.
6
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Plaintiffs Winnie Jackson, Jarrett “Jay” Jackson, Celina Vasquez,
Duane Braxton, Nadia Bhular, Amjad Bhular, Cheryl Mills-Smith, and
Richard Canada (collectively, “the Challengers”) sued to prevent Map 7’s
use in the 2026 election. They named Tarrant County, the Tarrant County
Commissioners Court, and County Judge Tim O’Hare, in his official
capacity, (collectively, “the County”) as defendants. Plaintiffs Winnie
Jackson, Jay Jackson, Braxton, and Mills-Smith are black; Vasquez and Nadia
Bhular are Latina; Amjad Bhular is Southeast Asian; and Canada is white.
Under the prior map, each Challenger resided in a precinct scheduled
to elect a County Commissioner in 2026. Under Map 7, however, all have
been reassigned to precincts that will not hold such elections until 2028.
In the district court, the Challengers alleged that Map 7 violated § 2
of the Voting Rights Act and the First, Fourteenth, and Fifteenth
Amendments. The Challengers moved for a preliminary injunction, and the
County moved to dismiss on jurisdictional and Rule 12(b)(6) grounds. The
district court granted the County’s motion in part—dismissing the
Challengers’ First Amendment claims—but otherwise denied both motions.
The Challengers appealed the denial of the preliminary injunction. In
light of the fast-approaching candidate-filing period, which begins on
November 8, 2025, a motions panel granted the Challengers’ request to
expedite the appeal.
II. Standard of Review
“We review the district court’s grant of [a] preliminary injunction for
abuse of discretion, reviewing underlying factual findings for clear error and
legal conclusions de novo.” 16 The framework governing preliminary
_____________________
16
Harrison v. Young, 48 F.4th 331, 339 (5th Cir. 2022).
7
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injunctions “is long-standing and familiar.” 17 Plaintiffs seeking such relief
must show four things: (1) a likelihood of success on the merits; (2) a
likelihood of suffering irreparable harm if an injunction is not granted;
(3) that the balance of equities tips in their favor; and (4) that an injunction
would serve the public interest. 18 “The first factor—likelihood of success on
the merits—is ‘the most important.’” 19
III. Discussion
On appeal, the Challengers raise three arguments: (1) that Map 7
discriminates on the basis of viewpoint in violation of the First and
Fourteenth Amendments; (2) that Map 7 discriminates on the basis of race
in violation of the Fourteenth and Fifteenth Amendments; and (3) that the
County’s mid-cycle redistricting unlawfully disenfranchises certain Tarrant
County residents without adequate justification. We take each in turn.
A. Viewpoint Discrimination
First, the Challengers argue that the Commissioners Court drew the
new district maps based on residents’ partisan affiliations, intending to
diminish the political strength of Democratic voters. They contend this
amounts to unconstitutional viewpoint discrimination. 20 The County
responds that this claim merely repackages a partisan-gerrymandering
_____________________
17
United States v. Abbott, 110 F.4th 700, 706 (5th Cir. 2024).
18
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
19
Abbott, 110 F.4th at 706 (quoting Mock v. Garland, 75 F.4th 563, 587 n.60
(5th Cir. 2023)).
20
Rosenberger v. Rector of Univ. of Va., 515 U.S. 819, 828 (1995) (“Discrimination
against speech because of its message is presumed to be unconstitutional.” (citation
omitted)).
8
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theory—one foreclosed to the federal courts under Rucho v. Common Cause. 21
The district court agreed with the County, and so do we.
Article III, which “vest[s]” federal courts with “[t]he judicial power
of the United States,” 22 at once empowers and “confines” that power to
certain categories of “Cases” and “Controversies.” 23 That limitation helps
“ensur[e] that the Federal Judiciary respects ‘the proper—and properly
limited—role of the courts in a democratic society.’” 24 One aspect of the
case-or-controversy requirement is the so-called “political question
doctrine.” 25
Although “it is emphatically the province and duty of the judicial
department to say what the law is,” “[s]ometimes . . . the law is that the
judicial department has no business entertaining the claim of unlawfulness—
because the question is entrusted to one of the political branches or involves
no judicially enforceable rights.” 26 The political-question doctrine embodies
that principle. A federal court’s “declination of jurisdiction under the
doctrine” is not abdication but acknowledgement—a recognition that courts
_____________________
21
588 U.S. 684 (2019).
22
U.S. Const. art. III, § 1.
23
FDA v. All. for Hippocratic Med., 602 U.S. 367, 378 (2024); see U.S. Const.
art. III, § 2.
24
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006) (quoting Allen v. Wright,
468 U.S. 737, 750 (1984)).
25
See Spectrum Stores, Inc. v. Citgo Petroleum Corp., 632 F.3d 938, 948 (5th Cir.
2011) (“[T]he concept of justiciability, as embodied in the political question doctrine,
expresses the jurisdictional limitations imposed upon federal courts by the case or
controversy requirement of Article III.” (cleaned up)); see also Massachusetts v. EPA,
549 U.S. 497, 516 (2007) (“It is therefore familiar learning that no justiciable ‘controversy’
exists when parties seek adjudication of a political question . . . .”).
26
Vieth v. Jubelirer, 541 U.S. 267, 277 (2004) (plurality opinion) (cleaned up)
(quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)).
9
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are “incompetent to make final resolution of certain matters” which
“another branch of government is both capable and better suited for
resolving.” 27
In Rucho, the Supreme Court held that “partisan gerrymandering
claims present political questions beyond the reach of the federal courts.” 28
The Challengers seek to sidestep Rucho by characterizing their claims as ones
of viewpoint-based disenfranchisement rather than viewpoint-based vote
dilution. They argue Rucho governs only the latter. But the Challengers use
of “disenfranchisement” stretches the term beyond recognition. True, they
cannot vote in the 2026 County Commissioner race, in which they would
have voted absent the redistricting. Yet they will vote in a different election—
the 2028 County Commissioner race—in which they would not otherwise
have participated. The tradeoff is inherent in every redistricting: some voters
are shifted out of one district and into another, losing the franchise in one
election while gaining it in the other.
What the Challengers’ claim adds is not true disenfranchisement but
rather mere vote postponement 29—the natural and unavoidable byproduct of
redistricting within a staggered electoral system. Nothing in Rucho suggests
that its conclusion would have been different if the districts at issue held
staggered (rather than simultaneous) elections. To the contrary, the Court
has emphasized that Rucho’s rule extends broadly to all “claims that a map is
_____________________
27
Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008).
28
588 U.S. at 718; see Alexander v. S.C. State Conf. of the NAACP, 602 U.S. 1, 21
(2024) (describing Rucho as “holding . . . that partisan-gerrymandering claims are not
justiciable in federal court”); Mi Familia Vota v. Abbott, 977 F.3d 461, 466 (5th Cir. 2020)
(describing Rucho as holding “that claims of excessive partisanship in districting are not
justiciable” (citation omitted)).
29
We borrow this terminology from Carr v. Brazoria Cnty., 341 F. Supp. 155, 160
(S.D. Tex.), aff’d 468 F.2d 950 (5th Cir. 1972) (mem.).
10
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unconstitutional because it was drawn to achieve a partisan end.” 30 But even
assuming the added element of vote postponement was sufficient to bring the
Challengers’ claim outside Rucho’s precise holding, Rucho’s reasoning still
governs. 31
The Rucho Court rested its decision on the absence of “a limited and
precise standard that is judicially discernible and manageable.” 32 As the
Court explained, “[p]artisan gerrymandering claims have proved far more
difficult to adjudicate” than malapportionment or racial gerrymandering
claims for one “basic reason”: “[W]hile it is illegal for a jurisdiction to depart
from the one-person, one-vote rule, or to engage in racial discrimination in
districting, ‘a jurisdiction may engage in constitutional political
gerrymandering.’” 33 Thus, “[t]he ‘central problem’” in a political
gerrymandering case was “not determining whether a jurisdiction has
engaged in partisan gerrymandering,” but rather “determining when
political gerrymandering has gone too far.” 34 Recognizing that “the
Constitution supplies no objective measure for assessing whether a
districting map treats a political party fairly,” the Court concluded that the
_____________________
30
Alexander, 602 U.S. at 6.
31
Cf. Ramos v. Louisiana, 590 U.S. 83, 104 (2020) (plurality opinion) (“It is usually
a judicial decision’s reasoning—its ratio decidendi—that allows it to have life and effect in
the disposition of future cases.” (citations omitted)).
32
Rucho, 588 U.S. at 710; see also Mi Familia Vota, 977 F.3d at 466 (“The [Rucho]
Court concluded that partisan gerrymandering claims constitute political questions
because they lack judicially discoverable and manageable standards for resolving them.”
(cleaned up)).
33
Rucho, 588 U.S. at 701 (quoting Hunt v. Cromartie (Cromartie I), 526 U.S. 541,
551 (1999)).
34
Id. (quoting Vieth, 541 U.S. at 296).
11
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question of “[h]ow much political motivation and effect is too much” is one
the Constitution commits to the political process, not to the judiciary. 35
The Challengers have not provided any reason to think that these
imponderables become any more ponderable by dint of a staggered election
cycle. Thus, even if Rucho’s precise result does not control, its reasoning
clearly does. The Challengers’ viewpoint-discrimination claim is
nonjusticiable. Accordingly, the district court lacked jurisdiction 36 and did
not err in declining to consider the viewpoint-discrimination claim as a basis
for injunctive relief. 37
B. Race Discrimination
We turn next to the Challengers’ race-discrimination claim. As a
threshold issue, we reject the County’s argument that this claim, like the
viewpoint-discrimination claim, presents a nonjusticiable political question.
We agree with the County (and the district court), however, that the
Challengers have not shown intentional race discrimination. Thus, they are
not likely to succeed on the merits of this claim.
_____________________
35
Id. at 708, 716 (quoting Vieth, 541 U.S. at 296–97).
36
Id. at 696 (noting that a political question is “beyond the courts’ jurisdiction”
(citation omitted)).
37
The district court concluded that Rucho barred the Challengers’ First
Amendment claim but nevertheless purported to dismiss that claim with prejudice.
Although that dismissal is not before us, we note that the political-question doctrine
deprives a court of jurisdiction, see id. at 696 (noting that a political question is “beyond the
courts’ jurisdiction”). Accordingly, any dismissal under the doctrine “must be without
prejudice to refiling in a forum of competent jurisdiction”—such as a state court. Carver v.
Atwood, 18 F.4th 494, 498 (5th Cir. 2021) (citation omitted); see Rucho, 588 U.S. at 719
(“Provisions in state statutes and state constitutions can provide standards and guidance
for state courts to apply.”); In re Khanoyan, 637 S.W.3d 762, 768 n.10 (Tex. 2022)
(reserving the question of “whether claims of political gerrymandering are . . . within
Texas courts’ subject-matter jurisdiction”).
12
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1. Justiciability
In Rucho, the Court acknowledged that its “cases have held that there
is a role for the courts with respect to at least some issues that could arise
from a State’s drawing of congressional districts”—namely, “one-person,
one-vote and racial gerrymandering.” 38 That recognition, we have observed,
“strongly indicates that, by contrast [to political gerrymandering claims],
race discrimination . . . claims, like those asserted by the [Challengers], do
not present political questions.” 39 And while “a legislature may pursue
partisan ends when it engages in redistricting” “as far as the Federal
Constitution is concerned,” 40 “[l]aws that explicitly discriminate on the
basis of race, as well as those that are race neutral on their face but are
unexplainable on grounds other than race, are . . . presumptively invalid.” 41
Thus, we have held that similar claims “do not present political questions.” 42
The County argues, however, that because the Commissioners
Court’s true motivation was political, rather than racial, Rucho bars the
Challengers’ race-discrimination claims. But Rucho’s reach turns on the type
of discrimination alleged—the inquiry that determines whether the
applicable standards are “judicially discernible and manageable” 43—not on
the defendant’s preferred characterization of its motives. Where, as here,
plaintiffs allege racial discrimination, but the defendants respond that their
actions were merely partisan, the task of “disentangl[ing]” the two may
_____________________
38
Rucho, 588 U.S. at 699 (citations omitted).
39
Mi Familia Vota, 977 F.3d at 466.
40
Alexander, 602 U.S. at 6.
41
Rucho, 588 U.S. at 700.
42
Mi Familia Vota, 977 F.3d at 467.
43
See Rucho, 588 U.S. at 710.
13
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prove difficult. 44 Yet the applicable standards remain “[w]ell-established.” 45
Thus, the Supreme Court has treated partisan motivation as a “defense,”
not a jurisdictional bar. 46
We pause briefly to note a separate justiciability issue. The
Challengers argue that the Commissioners Court intentionally discriminated
against black and Latino voters. However, the Challengers’ declarations
reveal that two of them are neither black nor Latino: one (Richard Canada) is
white, while another (Amjad Bhular) is Southeast Asian. Because a plaintiff
generally cannot sue to enforce the rights of others, it is not clear that these
plaintiffs have standing to challenge discrimination against black and Latino
voters. 47 We need not resolve that question today, however; each of the other
Challengers is either black or Latina, and “[i]t is well settled that once we
determine that at least one plaintiff has standing, we need not consider
whether the remaining plaintiffs have standing to maintain the suit.” 48
_____________________
44
See Alexander, 602 U.S. at 9–10.
45
Mi Familia Vota, 977 F.3d at 466.
46
See Alexander, 602 U.S. at 9–10 (describing a “partisan-gerrymandering
defense”); id. at 25–26 (noting that the State had “raised a partisan-gerrymandering
defense” at trial); id. at 35 (describing “the legislature’s defense that the districting lines
were ‘based on a permissible, rather than a prohibited, ground’” (emphasis added)
(quoting Cooper v. Harris, 581 U.S. 285, 317 (2017)).
47
See Powers v. Ohio, 499 U.S. 400, 410 (1991) (“In the ordinary course, a litigant
must assert his or her own legal rights and interests, and cannot rest a claim to relief on the
legal rights or interests of third parties.”).
48
McAllen Grace Brethren Church, 764 F.3d 465, 471 (5th Cir. 2014) (citation
omitted).
14
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2. Merits
Because the district court properly exercised jurisdiction over the
Challengers’ race-discrimination claim, we now turn to whether it properly
evaluated the Challengers’ likelihood of success on the merits of that claim.
“[T]he blight of racial discrimination in voting” has a long history. 49
Equally longstanding is the recognition that such discrimination cannot
coexist with democratic self-government. To bring our practice into closer
alignment with our ideals, Congress proposed and the States ratified the
Fifteenth Amendment, which provides that “[t]he right of citizens of the
United States to vote shall not be denied or abridged . . . on account of race,
color, or previous condition of servitude.” 50 The Fourteenth Amendment—
adopted just a year and a half before the Fifteenth—likewise secures to every
“citizen . . . a constitutionally protected right to participate in elections on an
equal basis with other citizens.” 51
Applying these amendments to the redistricting context, the Supreme
Court has recognized two “analytically distinct” forms of unconstitutional
race discrimination. 52 The most common claim arises from the Court’s 1993
decision in Shaw v. Reno, which explained that “redistricting legislation that
is so bizarre on its face that it is ‘unexplainable on grounds other than race’
demands the same close scrutiny” as “other state laws that classify citizens
by race.” 53 “The essence of the equal protection claim recognized in Shaw is
_____________________
49
See South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966).
50
U.S. Const. amend. XV, § 1.
51
Dunn v. Blumstein, 405 U.S. 330, 336 (1972).
52
Alexander, 602 U.S. at 38 (quoting Shaw v. Reno, 509 U.S. 630, 652 (1993)).
53
Shaw, 509 U.S. at 644 (quoting Vill. of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252, 266 (1977)).
15
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that the State has used race as a basis for separating voters into districts.” 54
In other words, Shaw recognized that “the doctrine of ‘separate but equal’
has no place” in the redistricting process. 55
To state a claim under Shaw, a plaintiff must show either that racial
considerations “predominate[d]” the districting process—that is, that “race
was the criterion that, in the State’s view, could not be compromised”—or
that race was used “as a proxy” for other considerations. 56 However, because
the gravamen of a Shaw claim is “the sorting of persons with an intent to
divide by reason of race,” 57 and this holds true “regardless of the
motivations” of those doing the sorting, 58 plaintiffs raising such a claim need
not show that the legislature either intended or succeeded in diluting any
particular racial group’s voting strength. Rather, “[t]he racial classification
itself is the relevant harm in that context.” 59
The second type of claim—which we for convenience call an
intentional-discrimination claim—arises when a State or political subdivision
“enact[s] a particular voting scheme as a purposeful device ‘to minimize or
_____________________
54
Miller v. Johnson, 515 U.S. 900, 911 (1995).
55
Brown v. Bd. of Educ. of Topeka, 347 U.S. 483, 495 (1954); see Miller, 515 U.S.
at 911 (“Just as the State may not, absent extraordinary justification, segregate citizens on
the basis of race in its public parks, buses, golf courses, beaches, and schools, so did we
recognize in Shaw that it may not separate its citizens into different voting districts on the
basis of race.” (citations omitted)); cf. Students for Fair Admissions, Inc. v. President of
Harvard Coll., 600 U.S. 181, 203 (2023) (“By 1950, the inevitable truth of the Fourteenth
Amendment had thus begun to reemerge: Separate cannot be equal.”).
56
Alexander, 602 U.S. at 7 & n.1 (quotations omitted).
57
Johnson v. De Grandy, 512 U.S. 997, 1029 (1994) (Kennedy, J., concurring).
58
Shaw, 509 U.S. at 645.
59
Alexander, 602 U.S. at 38.
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cancel out the voting potential of racial or ethnic minorities.’” 60 “Such
theories are seldom pursued because, at least according to conventional
wisdom, they are more difficult to prove than are effects-only Section 2
claims” under the Voting Rights Act. 61 When they are raised, however, they
require a “different analysis.” 62 Unlike a Shaw claim, an intentional-
discrimination claim requires a plaintiff to “show that the State’s districting
plan ‘has the purpose and effect’ of diluting the minority vote.” 63
Additionally, the purpose inquiry works differently for an intentional-
discrimination claim than for a Shaw claim. Though a Shaw claim can prevail
“regardless of the motivations underlying [the map’s] adoption,” 64 an
intentional-discrimination claim requires a legislative “purpose” of
“invidiously . . . minimiz[ing] or cancel[ling] out the voting potential of racial
or ethnic minorities.” 65
Importantly for our purposes, intentional discrimination claims also
differ from Shaw claims in how they handle so-called “mixed motives.” In
ordinary Fourteenth Amendment cases, “[p]roof that the decision . . . was
motivated in part by a racially discriminatory purpose” is sufficient to
“shift[ ] to the [defendant] the burden of establishing that the same decision
_____________________
60
Miller, 515 U.S. at 911 (quoting City of Mobile v. Bolden, 446 U.S. 55, 66 (1980)).
61
League of United Latin Am. Citizens v. Abbott (LULAC), 601 F. Supp. 3d 147, 160
(W.D. Tex. 2022) (three-judge panel) (citing Harding v. County of Dallas, 948 F.3d 302,
313 n.47 (5th Cir. 2020)).
62
Shaw, 509 U.S. at 650.
63
Alexander, 602 U.S. at 39 (emphasis in original) (quoting Shaw, 509 U.S. at 649).
64
Shaw, 509 U.S. at 645.
65
Bolden, 446 U.S. at 66 (citations omitted).
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would have resulted even had [race] not been considered.” 66 Shaw and its
progeny, however, require something more: “The plaintiff’s burden is to
show . . . that race was the predominant factor.” 67 If race is only one factor
among many, the claim fails. 68 The purpose requirement for an intentional-
discrimination claim, by contrast, “is simply one aspect of the basic
principle” that the Equal Protection Clause is violated “only if there is
purposeful discrimination.” 69 Accordingly, we apply the ordinary
Fourteenth Amendment mixed-motive analysis to intentional-discrimination
claims, meaning that “racial discrimination need only be one purpose, and
not even a primary purpose, of an official act for a violation to occur.” 70
Here, the Challengers raise only an intentional-discrimination claim.
Accordingly, the primary question is whether Map 7’s adoption “was
motivated in part by a racially discriminatory purpose.” 71 If it was, the burden
shifts to the County to prove that race was not the but-for cause of the
decision. 72 In conducting that analysis, we are mindful that “determining the
_____________________
66
Arlington Heights, 429 U.S. at 270 n.21; see also Hunter v. Underwood, 471 U.S.
222, 232 (1985).
67
Miller, 515 U.S. at 916 (emphasis added); see also Bush v. Vera, 517 U.S. 952,
1001–02 (1996) (Thomas, J., concurring in the judgment) (noting this difference
between the predominance standard and ordinary equal-protection analysis).
68
See Theriot v. Par. of Jefferson, 185 F.3d 477, 484 n.16 (5th Cir. 1999) (“The
relevance or consideration of race does not mandate a finding that race predominated.”).
69
Bolden, 446 U.S. at 66 (citations omitted).
70
Fusilier v. Landry, 963 F.3d 447, 463 (5th Cir. 2020) (cleaned up).
71
Arlington Heights, 429 U.S. at 270 n.21.
72
Id.
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subjective intent of legislators is a perilous enterprise.” 73 “[T]he complex
interplay of forces that enter a legislature’s redistricting calculus” makes it
especially hard in this context. 74 But “there are contexts in which
determination of legislative motive must be undertaken.” 75 And under the
Supreme Court’s precedents, this is one of them.
The framework set out in Village of Arlington Heights v. Metropolitan
Housing Development Corp. guides our analysis. 76 Under Arlington Heights,
“[d]etermining whether invidious discriminatory purpose was a motivating
factor demands a sensitive inquiry into such circumstantial and direct
evidence of intent as may be available.” 77 Consistent with that command, we
consider both direct and circumstantial indicia of intent. “Five
non-exhaustive factors guide courts in determining whether a particular
decision was made with a discriminatory intent: (1) the discriminatory impact
of the official action; (2) the historical background of the decision; (3) the
specific sequence of events leading up to the challenged action;
(4) substantive and procedural departures from the normal decision-making
_____________________
73
Edwards v. Aguillard, 482 U.S. 578, 638 (1987) (Scalia, J., dissenting)
(citations omitted); see also Hunter, 471 U.S. at 228 (“Proving the motivation behind
official action is often a problematic undertaking.” (citation omitted)).
74
Alexander, 602 U.S. at 43 (Thomas, J., concurring in part) (quoting Miller,
515 U.S. at 915–16).
75
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 558 (1993)
(Scalia, J., concurring in part and concurring in the judgment) (citation omitted).
76
429 U.S. at 266–68; see Veasey v. Abbott, 830 F.3d 216, 230 (5th Cir. 2016) (en
banc) (“We apply the framework articulated in [Arlington Heights] to determine whether
SB 14 was passed with a discriminatory purpose.”).
77
Arlington Heights, 429 U.S. at 266.
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process; and (5) contemporaneous viewpoints expressed by the
decisionmakers.” 78
The district court found that the Challengers had not shown that the
Commissioners Court acted with race as a motivating factor when it adopted
Map 7. Because “[l]egislative motivation or intent is a paradigmatic fact
question,” 79 we review that determination for clear error. 80 “Under that
standard of review, we affirm the court’s finding so long as it is ‘plausible’;
we reverse only when ‘left with the definite and firm conviction that a
mistake has been committed.’” 81 “This is a demanding test, but it is not a
rubber stamp.” 82
The Challengers argue that the district court applied the wrong test—
using the predominance standard applicable to Shaw claims rather than the
Arlington Heights framework applicable to intentional-discrimination claims.
If that is so, then the district court’s “finding of fact [was] based on the
application of an incorrect burden of proof” and thus “cannot stand.” 83
However, we do not agree with the Challengers’ reading of the district
court’s opinion. To be sure, the district court did conclude that one count in
the Challengers’ complaint raised a Shaw claim, and it applied the
predominance test to that count. But it also understood two other counts as
raising intentional-discrimination claims and applied the Arlington Heights
_____________________
78
Fusilier, 963 F.3d at 463 (citations omitted).
79
Prejean v. Foster, 227 F.3d 504, 509 (5th Cir. 2000) (citing Cromartie I, 526 U.S.
at 549).
80
See Abbott v. Perez, 585 U.S. 579, 607 (2018) (“[A] district court’s finding of fact
on the question of discriminatory intent is reviewed for clear error.” (citation omitted)).
81
Cooper, 581 U.S. at 309.
82
Alexander, 602 U.S. at 18.
83
Abbott, 585 U.S. at 607 (citation omitted).
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framework to those counts. That dual approach—performing both analyses
in the face of the Challengers’ less-than-crystal-clear framing of their
claims—reflects caution, not confusion. The fact that the district court,
faced with ambiguous pleadings, performed both the Arlington Heights
analysis and the racial-predominance analysis is no reason to discount its
factual findings under Arlington Heights. In short, its belt-and-suspenders
prudence was commendable, not reversible.
Nor do the Challengers’ arguments leave us with “the definite and
firm conviction that a mistake has been committed.” 84 The Challengers base
their claim primarily on comments that County Judge O’Hare made in an
interview with NBC 5 News. In the interview, Judge O’Hare stated:
The policies of Democrats continue to fail Black people over
and over and over, but many of them keep voting them in. It’s
time for people of all races to understand the Democrats are a
lost party, they are a radical party, it’s time for them to get on
board with us and we’ll welcome them with open arms.
As the Challengers see it, these comments are “as direct of evidence
of intentional racial discrimination as can be imagined.” Under Arlington
Heights, “contemporary statements by members of the decisionmaking
body” “may be highly relevant.” 85 In this case, however, we agree with the
district court that Judge O’Hare’s “statement is not the smoking gun [the
Challengers] think it is.”
For one thing, the record does not disclose the context of Judge
O’Hare’s remark. The Challengers contend that Judge O’Hare made this
statement “in the context of explaining his vote in favor of Map 7,” but they
_____________________
84
Cooper, 581 U.S. at 309.
85
Arlington Heights, 429 U.S. at 268.
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cite no evidence for that assertion—and we have found none in the record.
The NBC 5 broadcast shows Judge O’Hare making the quoted remark, but
beyond that Judge O’Hare does not appear on the broadcast, nor does the
broadcast otherwise disclose the context of his statement. In its brief on
appeal, the County cites a YouTube video that allegedly adds context to the
remark. However, this video was not part of the record before the district
court, and so we cannot consider it. 86
That missing context matters: if Judge O’Hare made his remark in
response to a question that did not mention race and simply asked why he
intended to vote for Map 7—as the Challengers imply—then his remark
might be probative of a discriminatory purpose. If, however, Judge O’Hare
made his remark in response to a question that itself raised the race issue—
as the district court suggests—then his brief mention of race (and immediate
pivot away from it) would have little or no probative value. At this stage, we
cannot tell which is so. And given (1) the presumption of legislative good
faith, 87 and (2) the clear-error standard of review, we cannot simply assume
the worst.
Even taking the statement in isolation, it doesn’t clearly suggest a
discriminatory purpose. It’s no secret that race and party affiliation are often
highly correlated. The Supreme Court has acknowledged as much, 88 and
_____________________
86
United States v. Muhammad, 14 F.4th 352, 363 n.4 (5th Cir. 2021) (“This court
generally does not consider evidence outside the record on appeal.” (citation omitted)).
87
Alexander, 602 U.S. at 6 (“[I]n assessing a legislature’s work, we start with a
presumption that the legislature acted in good faith.”).
88
See, e.g., Cooper, 581 U.S. at 308 (“[O]f course, ‘racial identification is highly
correlated with political affiliation.’” (quoting Easley v. Cromartie, 532 U.S. 234, 243
(2001)).
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courts in this circuit have too. 89 Indeed, the Challengers’ own allegations and
evidence underscore the same point. 90 A legislator’s public
acknowledgement of that basic fact does not, standing alone, demonstrate
discriminatory purpose. To be sure, as the Challengers observe, districting
decisions that rely on stereotypes about racial voting are constitutionally
suspect. 91 But that fact cannot save the Challengers’ claim. That’s true for
two reasons. First, that sort of stereotyping argument sounds in a Shaw claim,
which the Challengers disclaim raising. 92 Second, and more fundamentally,
the Challengers have not presented any evidence that Judge O’Hare was in
any way motivated by such stereotyping.
Taken as a whole, the rest of the statement reflects ordinary partisan
politics. It’s hardly surprising that a Republican officeholder would criticize
Democratic policies—or vice versa. Nor is it surprising that a Republican
would urge voters “of all races” to vote Republican. We therefore are
unpersuaded that Judge O’Hare’s statement demonstrates a discriminatory
purpose.
_____________________
89
See, e.g., Perez v. Abbott, 390 F. Supp. 3d 803, 820 (W.D. Tex. 2019) (“The
existence of high levels of racially polarized voting across Texas cannot be disputed, nor is
there any indication that the levels of racially polarized voting are decreasing.” (footnote
omitted)).
90
Because the Challengers’ claim under Section 2 of the Voting Rights Act is not
before us, we express no view on whether these allegations or this evidence are sufficient
to show that any minority group in Tarrant County is “politically cohesive” or whether
“the white majority votes sufficiently as a bloc to enable it . . . to defeat the minority’s
preferred candidate.” Allen v. Milligan, 599 U.S. 1, 18 (2023) (quoting Thornburg v. Gingles,
478 U.S. 30, 51 (1986)).
91
See Bush, 517 U.S. at 968 (plurality opinion) (“[T]o the extent that race is used
as a proxy for political characteristics, a racial stereotype requiring strict scrutiny is in
operation. We cannot agree with the dissenters that racial stereotyping . . . can pass without
justification in the context of voting.” (citations omitted)).
92
See Miller, 515 U.S. at 912–13.
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The Challengers also point to additional evidence that, in their view,
suggests a discriminatory intent. First, they highlight the disproportionate
number of black and Latino voters who will have their County Commissioner
votes postponed to 2028. Under Arlington Heights, “[t]he impact of the
official action”—specifically, “whether it ‘bears more heavily on one race
than another’”—“provide[s] an important starting point” for the
legislative-purpose inquiry. 93 In an extreme case, where the evidence shows
“a clear pattern, unexplainable on grounds other than race,” the analysis is
“relatively easy.” 94 However, “such cases are rare,” and absent an extreme
disparity, “the Court must look to other evidence.” 95
Although we acknowledge that the disproportionate effect of the
County’s redistricting on black and Latino voters is relevant, we think its
probative value is quite limited in this case. An obvious explanation for the
disparity exists: race and partisanship are highly correlated in Tarrant
County, and districting decisions driven by partisanship will often have
disparate racial effects. But “a jurisdiction may engage in constitutional
political gerrymandering, even if it so happens that the most loyal Democrats
happen to be black Democrats and even if the State were conscious of that
fact.” 96 The Challengers’ burden is to show that the Commissioners Court
adopted Map 7 “‘because of,’ not merely ‘in spite of,’ its adverse effects”
_____________________
93
Arlington Heights, 429 U.S. at 266 (quoting Washington v. Davis, 426 U.S. 229,
242 (1976)).
94
Id. (citations omitted).
95
Id. (citations omitted)
96
Cromartie I, 526 U.S. at 551 (emphasis in original).
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on minority voters. 97 Given the record before us, the disproportionate effect
of the County’s redistricting offers only marginal support for that conclusion.
Second, the Challengers rely on “[t]he historical background of the
[redistricting] decision.” 98 They note that “federal courts have held that
Texas violated” the Voting Rights Act “[i]n every decade since the statute
was passed in 1965.” 99 They place particular reliance on a 2012 decision that
found that the Texas Legislature intentionally discriminated in breaking up a
state senate district “located entirely within Tarrant County.” 100 But the
weight of this evidence is limited. “The allocation of the burden of proof and
the presumption of legislative good faith are not changed by a finding of past
discrimination.” 101 And past discrimination by the Texas Legislature is one
step removed from discrimination by the Tarrant County Commissioners
Court—a distinct legislative body. 102
Finally, the Challengers suggest that various “[d]epartures from the
normal procedural sequence” indicate a discriminatory purpose. 103 In
particular, they rely on the Commissioners Court’s decision to redistrict
mid-cycle despite the absence of any legal requirement to do so, the absence
of formal redistricting criteria, the speed of the redistricting process, the
County’s hiring of PILF to replace the law firm that had previously overseen
_____________________
97
Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (footnote omitted).
98
Arlington Heights, 429 U.S. at 267.
99
LULAC, 601 F. Supp. 3d at 170 (citing Veasey, 830 F.3d at 240).
100
See Texas v. United States, 887 F. Supp. 2d 133, 162–66 (D.D.C. 2012), vacated
and remanded, 570 U.S. 928 (2013).
101
Abbott v. Perez, 585 U.S. at 603.
102
Cf. Veasey, 830 F.3d at 232 (plurality opinion) (finding that actions by officials
in one county are not “probative of the intent of legislators in the Texas Legislature”).
103
See Arlington Heights, 429 U.S. at 267.
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the redistricting process in Tarrant County without conducting an open
bidding process, and PILF’s failure to engage in a public-input process or to
give substantive legal presentations to the Commissioners Court, as its
predecessor had done. But again, these alleged departures are only minimally
probative of discriminatory intent. To start, the fact that PILF went about
its task differently from its predecessor is not surprising; lawyers—and the
learning models increasingly assisting them—often reach the same end by
different means. The other departures are just as easily explained by a
partisan motive as a racial motive; partisan gerrymandering is unlikely to be
popular, so it is understandable that a legislature engaging in it would want to
avoid an extensive, public process. While that may not be consistent with the
best practices of good government, it is hardly suggestive of racial motivation.
Similarly, the choice to redistrict mid-cycle is easily explained by a desire to
reap partisan benefits in the 2026, 2028, and 2030 elections rather than
waiting until 2030 (when Republicans may or may not control the
Commissioners Court). So too, the speed of the redistricting process is easily
explained by the tight timeline between the start of the process and the
election. (Indeed, that is presumably why the Challengers asked both the
district court and this court to put this case on the fast track.)
Taken as a whole, the Challengers’ evidence does not leave us with a
“definite and firm conviction” that the district court erred in finding that the
Commissioners Court was not motivated by racial considerations. 104 Under
Arlington Heights, the discriminatory-purpose inquiry is not a mechanical
box-checking exercise that can be fulfilled merely by proffering any evidence
that arguably fits within each of the factors. Rather, we must remain mindful
of “the ultimate question,” which is “whether a discriminatory intent has
_____________________
104
Cooper, 581 U.S. at 309.
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been proved.” 105 We do not think the district court clearly erred in
concluding that it has not been. Accordingly, the Challengers are not likely
to succeed on the merits of their race-discrimination claim.
C. Vote Postponement
Finally, we turn to the Challengers’ argument that the adoption of
Map 7 unlawfully disenfranchises Tarrant County residents and lacks
adequate justification. As discussed above, the Challengers are incorrect to
claim that they—or anyone else—were disenfranchised by the County’s
redistricting: While they are ineligible to vote for a County Commissioner in
their old precinct, they remain eligible to vote for a County Commissioner in
their new one. In truth, their claims are about vote postponement; the election
in which they are now eligible to vote will not occur until 2028, whereas the
election in which they would have been eligible to vote will occur in 2026.
However, there is no constitutional right to vote “on a particular
schedule.” 106 This principle follows from the Supreme Court’s summary
affirmance in Pate v. El Paso County. 107 In Pate, the plaintiffs raised claims
almost identical to the Challengers’: arguing that “the realignment of the
four commissioners precincts” in El Paso County caused “certain voters” to
be “shifted” from one precinct to another and, as a result, postponed their
votes from 1970 to 1972. 108 A three-judge district court rejected this claim, 109
_____________________
105
Abbott v. Perez, 585 U.S. at 603 (quoting Bolden, 446 U.S. at 74).
106
Republican Party of Or. v. Keisling, 959 F.2d 144, 145 (9th Cir. 1992) (per
curiam).
107
337 F. Supp. 95 (W.D. Tex.) (per curiam), summarily aff’d 400 U.S. 806 (1970).
108
Id. at 96.
109
Id. at 100.
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and the Supreme Court summarily affirmed. 110 Because Pate was a summary
affirmance, it is “not of the same precedential value as . . . an opinion of [the
Supreme] Court treating the question on the merits.” 111 We cannot, for
example, read the summary affirmance “as an adoption of the reasoning
supporting” the three-judge court’s judgment. 112 Nevertheless, we are
“bound by [Pate] until such time as the Court informs [us] that [we] are
not.” 113 That binding effect “prevent[s]” us “from coming to opposite
conclusions on the precise issues presented and necessarily decided” in
Pate. 114 Thus, we cannot conclude that a jurisdiction violates the Constitution
merely by redrawing its districts in a way that, under a staggered election
system, results in some voters’ votes being postponed.
Rather than arguing that they have a constitutional right to vote “on a
particular schedule,” 115 the Challengers contend that the vote postponement
at issue here is discriminatory and thus subject to heightened scrutiny. It is
not clear, however, what axis of discrimination they invoke. To the extent
they allege discrimination based on viewpoint or race, those arguments are
duplicative of their previous viewpoint- and race-discrimination claims,
which we have already rejected. It appears, however, that the Challengers
instead contend the discrimination is simply between those voters who will
wait only two or four years between County Commissioner elections and
those who will have to wait six years. If that is the Challengers’ argument, it
_____________________
110
400 U.S. 806.
111
Edelman v. Jordan, 415 U.S. 651, 671 (1974).
112
Zobel v. Williams, 457 U.S. 55, 64 n.13 (1982).
113
Hicks v. Miranda, 422 U.S. 332, 344–45 (1975) (cleaned up).
114
Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam).
115
Keisling, 959 F.2d at 145.
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borders on frivolous. Every redistricting in a staggered system produces that
effect; treating it as a constitutional violation would convert every routine
redistricting in a staggered system into a matter of strict scrutiny.
In the alternative, the Challengers contend that we should subject
redistricting decisions in jurisdictions with staggered election systems to the
framework laid out in Anderson v. Celebrezze 116 and Burdick v. Takushi. 117
Under the so-called Anderson-Burdick framework, we would “examine two
aspects” of a jurisdiction’s redistricting choices: (1) whether [they] pose[ ] a
‘severe’ or instead a ‘reasonable, nondiscriminatory’ restriction on the right
to vote and (2) whether the state’s interest justifies the restriction.” 118 As the
Challengers see it, a State’s districting decisions survive scrutiny under this
framework if they are required by the one-person one-vote principle.
However, a State’s districting decisions are unconstitutional if they are
motivated by “a desire to engage in partisan gerrymandering.”
We reject the Challengers’ proposed framework. First, it would lure
us once again into policing partisan gerrymandering. But, as Rucho made
clear, that sort of inquiry is “beyond the competence of the federal
courts.” 119 Second, Anderson-Burdick applies to laws that “burden a relevant
constitutional right.” 120 As we have explained, there is no constitutional right
to vote “on a particular schedule.” 121 Third, we are aware of no cases
_____________________
116
460 U.S. 780 (1983).
117
504 U.S. 428 (1992).
118
Richardson v. Tex. Sec’y of State, 978 F.3d 220, 235 (5th Cir. 2020) (quoting
Burdick, 504 U.S. at 434).
119
See Rucho, 588 U.S. at 707 (citation omitted).
120
Mazo v. N.J. Sec’y of State, 54 F.4th 124, 138 (3d Cir. 2022).
121
Keisling, 959 F.2d at 145.
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applying Anderson-Burdick to redistricting decisions. Nor are we aware of any
decision extending that framework to the process by which a jurisdiction
modifies the rules of the electoral road—such as the choice to redistrict—
rather than to the rules themselves—such as the map. Finally, the analysis
the Challengers envision would require “the judiciary to decide whether any
given election law is necessary,” thus “allow[ing] a political question—
whether a rule is beneficial, on balance—to be treated as a constitutional
question to be resolved by the courts rather than by legislators.” 122 As a
result, “doggedly employing Anderson-Burdick” where it “has no
application” would be nothing but “a camouflaged interest in asserting ‘will’
rather than ‘judgment.’” 123
The Challengers seek refuge in Dunn v. Blumstein, which they read for
the proposition that “close scrutiny” “applies . . . to outright
disenfranchisement (even when it is ‘temporary’).” In Dunn, the Supreme
Court invalidated Tennessee’s durational-residency requirement, which
limited the franchise to those who had resided in the State for at least one
year. 124 The Court held that strict scrutiny was appropriate because
“[d]urational residence requirements completely bar from voting all
residents not meeting the fixed durational standards.” 125 But this case is
worlds away from Dunn. Here, the Challengers will not cast a vote for County
_____________________
122
Luft v. Evers, 963 F.3d 665, 671 (7th Cir. 2020).
123
Daunt v. Benson, 999 F.3d 299, 327 (6th Cir. 2021) (Readler, J., concurring)
(quoting The Federalist No. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed.,
1961)).
124
See Dunn, 405 U.S. at 331–33.
125
Id. at 336; see S.A. Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 37–38 (1973) (citing
Dunn as an example of a case applying strict scrutiny). Separately, the Court held that
heightened scrutiny was appropriate because durational-residency requirements burden
the right to travel. Dunn, 405 U.S. at 338. That holding is not at issue here.
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Commissioner in 2026—but in 2028, they will be able to vote for
Commissioner when they otherwise would not have. By contrast, the
would-be voter in Dunn was barred from voting in the 1970 election 126 and
received no compensating additional vote thereafter; he could vote in later
elections on the same terms as if there had never been a durational-residency
requirement.
As one of our sister circuits has explained, plaintiffs in vote-
postponement cases are unlike the plaintiff in Dunn because they are not
“denied their right to vote in any regularly scheduled . . . election.” 127
Rather, “[t]hey were able to vote in the regularly scheduled pre-
reapportionment . . . elections in their old districts, and they will be able to
vote in the next regularly scheduled general election for their new
district.”128 The Challengers’ real concern is not that they are being denied
the right to vote in one of their precinct’s elections—it is that the election
will occur later than usual. But if we were to subject such timing adjustments
to strict scrutiny, there would be no limiting principle. Could the same
reasoning invalidate a decision to hold elections in odd years instead of even?
In December instead of November? A week later than usual? A day? Could it
be used to challenge opening the polls an hour later, taking a day longer to
count the ballots, or extending the lame-duck period? The Challengers give
us know way of knowing.
_____________________
126
Dunn, 405 U.S. at 331.
127
Donatelli v. Mitchell, 2 F.3d 508, 514–15 (3d Cir. 1993).
128
Id. at 515.
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Finally, to the extent the Challengers urge us to apply the
rational-basis test, 129 Map 7 easily passes it. To be sure, rational-basis review
is something of a misnomer: it is seldom rational, rests on little basis, and
scarcely qualifies as review. Our court has aptly called it “a notoriously
deferential standard” 130—if “standard” is even the right word. Under
rational-basis review, we uphold a classification “so long as there is ‘any
reasonably conceivable state of facts that could provide a rational basis for the
classification.’” 131 And there can be no serious doubt that staggered
legislative terms are rational—indeed, the Constitution itself adopts that
design. 132 The only remaining question, then, is whether any conceivable
rational basis could support Tarrant County’s decision to redistrict
mid-cycle.
The most obvious reason for mid-cycle redistricting, of course, is
partisan gain. 133 But even assuming the Challengers are correct that partisan
advantage is not a legitimate government interest, 134 there are other reasons
_____________________
129
See id. at 514 (“Courts that have addressed equal protection claims brought by
voters who were temporarily disenfranchised after a reapportionment have consistently
applied rational-basis review.” (collecting cases)).
130
Reyes v. N. Tex. Tollway Auth., 861 F.3d 558, 561–62 (5th Cir. 2017).
131
United States v. Skrmetti, 605 U.S. 495, 522 (2025) (quoting FCC v. Beach
Commc’ns, 508 U.S. 307, 313 (1993)).
132
See U.S. Const. art. I, § 3, cl. 2 (establishing a staggered election system for
the Senate).
133
See League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 457–58 (2006)
(Stevens, J., concurring in part and dissenting in part).
134
But see id. at 416–17 (majority opinion) (rejecting the argument that “[a]
decision . . . to effect mid-decennial redistricting, when solely motivated by partisan
objectives, violates equal protection and the First Amendment because it serves no
legitimate public purpose and burdens one group because of its political opinions and
affiliation”); Alexander, 602 U.S. at 6 (“[A]s far as the Federal Constitution is concerned,
a legislature may pursue partisan ends when it engages in redistricting.”).
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a jurisdiction may decide to redistrict mid-decade. The district court
identified one: the County’s concern that the prior map had been rendered
“constitutionally suspect” by the previous law firm’s advice to maintain a
“coalition district.” We express no view on whether that constitutional
concern was well founded. We note only that (1) the legal standard governing
the permissible role of race in redistricting has long perplexed legislatures, 135
(2) under rational-basis review, it does not matter whether these
constitutional concerns were the actual reason for adopting Map 7, so long as
such a reason is conceivable, 136 and (3) although plaintiffs in rational-basis
cases may “negate a seemingly plausible basis . . . by adducing evidence of
irrationality,” 137 the Challengers have identified no such irrationality here.
Because the adoption of Map 7 satisfies even the most charitable conception
of rational-basis review, we need not decide whether the decision to adopt
new district maps is subject to that standard at all.
In sum: Nothing in the Constitution forbids a jurisdiction from
adopting a staggered election system. Nothing in the Constitution forbids a
jurisdiction from redistricting mid-cycle. And nothing in the Constitution
forbids a jurisdiction from combining the two—even when the practical
result is that some voters must wait a bit longer to cast their ballots. The
Constitution protects the right to vote, not the right to vote on a particular
_____________________
135
See Louisiana v. Callais, 145 S. Ct. 2608, 2610 (2025) (Thomas, J., dissenting)
(“[D]ue to our Janus-like election-law jurisprudence, States do not know how to draw maps
that survive both constitutional and VRA scrutiny.” (cleaned up)).
136
Reyes, 861 F.3d at 563 (quoting FM Props. Operating Co. v. City of Austin, 93 F.3d
167, 175 (5th Cir. 1996)).
137
Hines v. Quillivan, 982 F.3d 266, 273 (5th Cir. 2020) (quoting St. Joseph Abbey
v. Castille, 712 F.3d 215, 223 (5th Cir. 2013)).
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timetable. Accordingly, the Challengers are unlikely to prevail on the merits
of their vote-postponement claim.
* * *
Because we conclude that the Challengers are unlikely to succeed on
the merits of any of their claims, we do not address the remaining
preliminary-injunction factors. Nor do we decide whether we are, at this
point, already too close to an election for a federal court to intervene. 138
IV. Conclusion
We AFFIRM the district court’s denial of a preliminary injunction.
_____________________
138
See Purcell v. Gonzalez, 549 U.S. 1, 5–6 (2006) (per curiam).
34