Reply Brief — Dickinson Bay Area Branch NAACP, et al., Applicants v. Galveston County, Texas, et al.

No. 23A523

In the Supreme Court of the United States

DICKINSON BAY AREA BRANCH NAACP, ET AL.,

Applicants,

v.

GALVESTON COUNTY, ET AL.

Respondents.

APPLICANTS’ REPLY IN SUPPORT OF EMERGENCY APPLICATION TO VACATE THE

FIFTH CIRCUIT’S STAY OF THE ORDERS ISSUED BY THE UNITED STATES DISTRICT

COURT FOR THE SOUTHERN DISTRICT OF TEXAS

Richard Mancino

Michelle A. Polizzano

Andrew James Silberstein

Molly L. Zhu

Kathryn C. Garrett

WILLKIE FARR & GALLAGHER LLP

787 Seventh Avenue

New York, NY 10019

Hilary Harris Klein

Counsel of Record

Adrianne M. Spoto

SOUTHERN COALITION FOR SOCIAL JUSTICE

5517 Durham Chapel Hill Blvd.

Durham, NC 27707

919-323-3380

hilaryhklein@scsj.org

Hani Mirza

Joaquin Gonzalez

TEXAS CIVIL RIGHTS PROJECT

1405 Montopolis Drive

Austin, TX 78741

R. Stanton Jones

Elisabeth S. Theodore

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave. NW

Washington, DC 20001

Aaron E. Nathan

Diana C. Vall-llobera

WILLKIE FARR & GALLAGHER LLP

1875 K Street, N.W.

Washington, DC 20006

Nickolas Spencer

SPENCER & ASSOCIATES, PLLC

9100 Southwest Freeway, Suite 122

Houston, TX 77074

TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................................................................................... i

TABLE OF AUTHORITIES ................................................................................................................................... ii

INTRODUCTION ..................................................................................................................................................... 1

ARGUMENT 2

I.

The County Waived Purcell Because It Concedes It Did Not Move for a Stay

Based on Purcell. ..................................................................................................................................... 2

II.

The Stay Factors Do Not Support a Stay Under Any Standard. ............................................. 4

a.

The County Has No Likelihood of Success Under Longstanding

Controlling Precedent. ............................................................................................................ 4

b.

If the Stay Is Not Lifted, Galveston’s Minority Voters Will Be

Completely Shut Out of the Political Process Under the Enacted Plan,

the Precise Harm the Voting Rights Act Is Meant to Prevent. ................................. 7

c.

The Remaining Stay Factors Decisively Refute a Stay............................................. 10

CONCLUSION ....................................................................................................................................................... 10

i

TABLE OF AUTHORITIES

Cases

Page(s)

Allen v. Milligan,

599 U.S. 1 (2023)........................................................................................................................................2, 8

Bartlett v. Strickland,

556 U.S. 1 (2009)........................................................................................................................................5, 6

LULAC v. Perry,

548 U.S. 399 (2006) ...................................................................................................................................... 5

Merrill v. Milligan,

142 S. Ct. 879 (2022) ................................................................................................................................2, 4

Republican Nat’l Comm. v. Democratic Nat’l Comm.,

140 S. Ct. 1205 (2020) ................................................................................................................................. 3

Rose v. Raffensperger,

143 S. Ct. 58 (2022) ....................................................................................................................................... 3

Thornburg v. Gingles,

478 U.S. 30 (1986) ......................................................................................................................................... 7

Statutes

52 U.S.C. § 10301(b) ............................................................................................................................................. 1

Tex. Elec. Code § 172.054................................................................................................................................... 2

Tex. Elec. Code § 202.004(c) ............................................................................................................................. 2

Voting Rights Act Section 2 .................................................................................................................... passim

ii

INTRODUCTION

For three decades, Black and Latino voters have elected their representative of choice

in Precinct 3, one of four commissioners precincts (and the sole majority-minority precinct)

in Galveston County. Because the County demolished Precinct 3, Black and Latino voters

across Galveston will be now unable to elect a single representative of their choice to the

commissioners court. The underlying facts support that, when the County demolished

Precinct 3, it did so in knowing violation of Section 2 of the Voting Rights Act as construed

under decades-old Fifth Circuit en banc precedent. The County does not dispute that it raised

no Purcell-related concerns before the district court on December 4, when the trial court

imposed the remedial map, and that it did not even move in the Fifth Circuit for relief based

on Purcell.

The district court’s findings came 144 days before the primary election and over one

year before the general election. A panel of the Fifth Circuit affirmed those factual findings

116 days before the primary election and 361 days before the general election. And not one

of the court’s factual findings has been called into question by a single reviewing judge.

The Court has never approved a Purcell-based stay under circumstances like these,

and this case—with its “mean-spirited” and “egregious” map—should not be the first. The

County’s efforts to overturn existing precedent can be considered in due course. In the

meantime, both the Voting Rights Act and the rule of law entitle Galveston County’s minority

voters to an equal opportunity “to participate in the political process and to elect

representatives of their choice.” 52 U.S.C. § 10301(b).

It is not too late to prevent injustice from occurring and to avoid requiring Galveston’s

voters to vote under a map “that renders a minority vote unequal to a vote by a nonminority

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voter.” Allen v. Milligan, 599 U.S. 1, 25 (2023). The district court’s remedial order had already

been in effect for a week when the Circuit Court issued this stay, and candidates have had an

opportunity to file under the remedial plan. If they need more of an opportunity, Texas law

already contemplates the possibility of extending the candidate filing deadline. See Tex. Elec.

Code §§ 172.054 (“Extending Filing Deadline”), 202.004(c). No votes have been cast, nor

have any ballots been prepared. Under the “clearcut,” Merrill v. Milligan, 142 S. Ct. 879, 881

(2022) (Kavanaugh, J., concurring), ordinary, public meaning of a valid statute, the stay

should be vacated.

ARGUMENT

I.

The County Waived Purcell Because It Concedes It Did Not Move for a Stay Based

on Purcell.

The County does not deny that they failed to invoke Purcell in their December 1, 2023

motion for a stay to the Fifth Circuit. Response at 20.1 The County’s implicit representation

to the Fifth Circuit that Purcell did not justify a stay was consistent with their prior

representations to the trial court that it would have “more than sufficient time to decide this

matter” even if all proceedings were stayed until after this Court’s anticipated 2023 decision

in Allen v. Milligan. Defendants’ Motion to Stay, Petteway v. Galveston Cnty., No. 3:22-cv-57,

Dist. Ct. Dkt. 36, at 9 (May 16, 2022). It is likewise consistent with the County’s conduct

throughout the pretrial and trial process, where they never raised timing-related concerns

about the August 7 trial date for administering relief ahead of the 2024 primary. And it is

consistent with their failure to raise any Purcell-related concerns before the district court at

1 The County notes that its Fifth Circuit reply brief addressed the Petteway applicants’ arguments as to why

the Purcell doctrine prohibited a stay. That is irrelevant.

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its hearing on December 4 relating to the implementation of the remedial map. Under these

circumstances, Purcell has been waived, and it was error for the Fifth Circuit to rely on Purcell.

Waiver aside, Purcell does not apply because the County can implement Map 1

without difficulty. Candidates have already filed under Map 1. The County does not

substantiate its assertions that implementing Map 1 in advance of the election would cause

any voter confusion, which contradict the trial court’s factual findings that the enacted plan

would. Instead, the County merely asserts that implementing Map 1 will require the printing

of ballots and voter registration certificates reflecting the new Map. Response at 19. But the

fact that a jurisdiction will have to do some work months in advance of the election to

implement a remedial map cannot possibly be a justification for invoking Purcell; if it were,

Purcell would always prohibit relief.

The County also reiterates the Fifth Circuit’s conflation of election deadlines in their

argument that Purcell requires a stay here. See Response at 14-15. This Court has held that

lower courts cannot “alter the election rules on the eve of an election.” Republican Nat’l Comm.

v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020) (emphasis added). But two weeks

before the candidate filing deadline is not the “eve” of an election. See App. at 203 (granting

the stay because “On November 30, 2023, the district court entered an order implementing”

Map 1 “less than two weeks before Texas’s filing deadline on December 11, 2023”) (emphasis

omitted).

It is therefore appropriate for this Court to reverse the stay, as it has under similar

circumstances. See Rose v. Raffensperger, 143 S. Ct. 58, 59 (2022) (internal citation omitted).

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II.

The Stay Factors Do Not Support a Stay Under Any Standard.

a. The County Has No Likelihood of Success Under Longstanding

Controlling Precedent.

The County admits that current, binding precedent in the Fifth Circuit interprets

Section 2 to protect minority voters experiencing a common vote dilution on account of race

within their jurisdiction. Response at 24, 32 (“The Fifth Circuit has historically permitted

minority coalition claims.”). The County also does not meaningfully rebut that the likelihood

of success on the merits must be assessed on the basis of the law as it is, see NAACP/LULAC

Application at 15, and it fails to cite any decision of this Court permitting a stay of a final

judgment that indisputably applies currently, binding Circuit precedent. Respondents’

reliance on the stay granted in Allen v. Milligan is inapposite here: the stay there was of a

preliminary injunction, not a final judgment, and as Justice Kavanaugh explained in his

concurrence, “the Court’s case law” on the underlying merits question in Milligan was

“notoriously unclear and confusing” at the time. Merrill v. Milligan, 142 S. Ct. 879, 881 (2022)

(Kavanaugh, J., concurring). Here, by contrast, the law is clear under binding circuit

precedent: the 2021 enacted plan violates Section 2.

Unless vacated, a stay in this matter would set a dangerous precedent that

government actors may violate longstanding precedent with impunity based upon a gamble

they can change the law. Stare Decisis requires that a likelihood of success on the merits may

not be found based on a mere prediction that the en banc Fifth Circuit will reverse its longestablished precedent, thereby contravening a majority of other circuits considering the

same issue. See NAACP/LULAC Application at 9-10. Issuance of a stay under these

circumstances contravenes core principles of judicial administration and the rule of law that

provide the backbone to our judicial system. It must be clear to government actors they have

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an obligation to follow final judicial determinations based upon the law as it is, and they may

not ignore such determinations merely because the law is not as they wish it to be. The

County will have its chance to change the law, but it is not entitled to one free unlawful

election while its efforts are underway.

In any event, the County’s efforts are not likely to be successful for the textual and

historical reasons outlined in the stay application. The application of the Gingles factors

should not depend on a racially essentialist pre-determination that voters must share a

somewhat arbitrary census-defined category in order to experience a common racial vote

dilution. As the County admits, this Court has issued no decisions holding that Section 2 does

not protect minority coalition districts, and this Court has long assumed that minority

coalition claims are available. The language the County relies upon from LULAC v. Perry, 548

U.S. 399, 446 (2006), is clearly inapposite because it concerned so-called influence districts

where “minority voters could not elect a candidate of their choice.” Response at 36. Here, the

facts (as affirmed by a panel of the Fifth Circuit and not the subject of the currently pending

en banc review) conclusively show that minority voters, whether considered as a group or

as Black voters separately and Latino voters separately, were electing their representative

of choice. App. at 65, 151-53, 164. This was confirmed by looking not only at general election

results, but also primary election results. Id.

Likewise, the County's discussion of Bartlett v. Strickland, 556 U.S. 1 (2009), is

misplaced. As an initial matter, the Court explicitly stated that its opinion did “not address”

claims where the injured minority voters are from more than one racial minority background.

Bartlett, 556 U.S. at 13. Further, the reasons for not recognizing “crossover” districts, where

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the minority group must rely on crossover from majority-group voters to elect a candidate

of choice, are not applicable to these circumstances.

To the contrary, the VRA Section 2 test this Court described in Bartlett easily

encompasses the claims here: “[u]nlike any of the standards proposed to allow crossoverdistrict claims, the majority-minority rule relies on an objective, numerical test: Do

minorities make up more than 50 percent of the voting-age population in the relevant

geographic area?” 556 U.S. at 18 (emphasis added). The answer to this question in Galveston

is “yes.” And unlike with crossover districts, here there is no “serious tension with the third

Gingles requirement that the majority votes as a bloc to defeat minority-preferred

candidates.” Id. at 16. Even Defendants’ expert did not dispute that Anglo bloc voting would

defeat the minority candidate of choice “in every election in every commissioners precinct”

of the enacted plan. App. at 68. The district court also made specific factual findings rejecting

the County’s argument that political rather than racial alliances explain voting in Galveston

County. App. at 74. The Court cited six specific factors that all supported the conclusion that

the vote dilution here was plausibly on account of race, and not mere partisanship. App. at

155. The district court’s findings conclusively establish that the enacted plan, together with

legally significant racially polarized voting, are the but-for cause of Applicants’ lack of

opportunity to elect a representative of their choice, reflecting a successful application of the

Gingles standard. Again, these factual findings were affirmed by a panel of the Fifth Circuit

and are not the subject of the pending en banc review. App. at 11-12.

Both because the 2021 map undisputedly violates existing Fifth Circuit law, and

because the Voting Right Act protects groups of minority voters, the County is unlikely to

succeed on the merits and the Court should lift the stay.

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b. If the Stay Is Not Lifted, Galveston’s Minority Voters Will Be Completely

Shut Out of the Political Process Under the Enacted Plan, the Precise

Harm the Voting Rights Act Is Meant to Prevent.

The County asks this Court to ignore the clear factual findings of the trial court, which

considered and rejected the erroneous theories they now advance to try and defend their

discriminatory enacted plan. Even a panel of the Fifth Circuit agreed that the district court

“did not clearly err” in its factual findings in applying the test from Thornburg v. Gingles, 478

U.S. 30 (1986). App. at 11. These factual findings utterly contradict the Response’s portrayal

and show that the balance of the equities weigh definitively in favor of vacating the stay.

1. The district court found the County’s actions “fundamentally inconsistent” with the

Voting Rights Act. App. at 22.

This is not a typical redistricting case. What happened here was stark

and jarring. The commissioners court transformed Precinct 3 from the

precinct with the highest percentage of Black and Latino residents to

that with the lowest percentage. The circumstances and effect of the

enacted plan were mean-spirited and egregious given that there was

absolutely no reason to make major changes to Precinct 3. Looking at

the totality of the circumstances, it was a clear violation of § 2 of the

Voting Rights Act. And it must be overturned.

App. at 165 (internal quotations and citations omitted). In considering whether minority

voices would be “heard in a meaningful way” or “shut out of the process altogether” under

the enacted plan, the district court determined that:

Looking—as this court must—at the totality of the circumstances, it is

stunning how completely the county extinguished the Black and Latino

communities’ voice on its commissioners court during 2021’s

redistricting.

App. at 164.

These conclusions were based upon extensive findings of race-based vote dilution

within Galveston, including that:

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 “The 2021 redistricting process for commissioners precincts occurred within

a climate of ongoing discrimination affecting Black and Latino voting

participation.” App. at 119 (emphasis added).

 “[S]ignificant evidence of non-statistical cohesion” between Black and Latino

communities “[led] the court to conclude there are distinctive minority

interests that tie the two communities together.” App. at 151-52 (emphasis

added).

 There was no dispute that “more than 85% of Anglos vote cohesively” to

oppose candidates “supported by more than 85% of Black and Latino voters.”

App. at 153.

Relying on these facts and more, the district court ultimately found that “[t]he

preponderance of the evidence supports the conclusion that the challenged plan ‘thwarts a

distinctive minority vote at least plausibly on account of race.’” App. at 155 (quoting Milligan,

599 U.S. at 19).

As this Court confirmed earlier this year, the harm that the County will cause

Galveston’s minority voters is the precise harm the Voting Rights Act was meant to prevent:

Districts that are not “equally open” because “minority voters face—unlike their majority

peers—bloc voting along racial lines, arising against the backdrop of substantial

discrimination within the State, that renders a minority vote unequal to a vote by a

nonminority voter.” Milligan, 599 U.S. at 25 (emphasis added).

2.

The district court found, following an intensely local appraisal, that

Galveston’s minority voters would suffer impermissible vote dilution on account of race, not

partisanship. In short, there was definitive statistical and non-statistical evidence of legally

significant racially polarized voting, and the County had failed to “present reliable or

methodologically sound evidence sufficient to dispute that Anglo bloc voting ‘thwarts’ the

Black and Latino voting coalition in Galveston County for reasons wholly unconnected to

race.” App. at 155 (quoting Milligan, 599 U.S. at 19).

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In coming to this conclusion, the district court gave “considerable weight” to the lack

of successful minority candidates emerging from Republican primaries, the extreme degree

of Anglo bloc voting, the fact that minority candidates tend to only be elected from majorityminority areas, the continued racial appeals in elections, lay witness testimony recounting

instances of discrimination, persistent racial disparities across a wide range of measures,

and “overwhelmingly” racial divergence in primary participation. App. at 155.

The district court’s comprehensive review and analysis considered all of the

arguments the County now raises to this Court, and which fail upon close inspection. Take, for

example, the County’s assertion that only “Latino community leaders” expressed objections

to the U.S. Department of Justice in 2012 about Latino voting power in any new plan. Response

at 6. Putting aside the tenuous connection this fact would have to the conclusive findings of

the trial court on racial vote dilution, it is also wrong: the 2012 letter to the DOJ was signed

by Galveston’s Black and Latino community organizations and leaders together. See County

Respondents’ App. at 32-33. Signatories include the same NAACP branches that joined with

the local LULAC branch, and Black and Latino individuals, to form the NAACP/LULAC

Applicants in this matter. And the letter expressed a common belief that their proposed map

“better reflects the minority population of Galveston County by creating two districts where

Latino/African-Americans have more opportunity to elect or influence the election of their

candidate of choice.” County Respondents’ App. at 31 (emphasis added).

In other words, this letter—at the center of County’s attack on the trial court’s

findings—instead underscores the longstanding, distinctive minority interest of Galveston’s

Black and Latino community to advocate for their collective voting power within the

jurisdiction. The County does not dispute that this interest will be utterly thwarted under

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the enacted plan, denying Galveston’s Black and Latino voters any opportunity to elect a

candidate of their choice for the first time in decades.

c. The Remaining Stay Factors Decisively Refute a Stay

The County does not dispute that NAACP/LULAC Applicants and other plaintiffs

diligently litigated this matter through a full trial on the merits with the common

understanding between the parties that any relief would come in time for the 2024 election,

see NAACP/LULAC Application at 5, and they do not contend that it will be administratively

infeasible for the County to administer the 2024 election under the county-drawn Map 1.

Moreover, there would be no voter confusion if Map 1 is used instead of the enacted

plan. As the County admits, Map 1 is a “least-change” plan preserving historic boundary lines,

and the opportunity for Galveston’s Black and Latino voters to elect a candidate of choice as

they have for decades. See Response at 9. The purported issues the County Defendants

complain of all arise out of the County Defendants’ unjustifiable decision to adopt an enacted

plan that executed a “textbook example of a racial gerrymander,” dismantling the sole

majority-minority Precinct 3 when there was “absolutely no reason to make major changes

to Precinct 3.” App. at 21-22. The “dramatic changes in the enacted plan” mean that “the

likelihood of voter confusion—such as voters not knowing in which commissioner’s precinct

they reside—is high” under the enacted plan. App. at 117-18. Map 1 is the best option for

both maintaining the status quo and minimizing confusion for voters electing candidates to

commissioners Precincts 1 and 3 for the first time since 2020.

CONCLUSION

For the reasons set forth above and in the Application, the Fifth Circuit’s stay of the

district court’s final judgment should be vacated. Applicants also respectfully request that

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the Court treat this application as a petition for writ of certiorari before judgment and grant

the petition.

Respectfully submitted.

Richard Mancino

Michelle A. Polizzano

Andrew James Silberstein

Molly L. Zhu

Kathryn C. Garrett

WILLKIE FARR & GALLAGHER LLP

787 Seventh Avenue

New York, NY 10019

212-728-8000

Hilary Harris Klein

Counsel of Record

Adrianne M. Spoto

SOUTHERN COALITION FOR SOCIAL JUSTICE

5517 Durham Chapel Hill Blvd.

Durham, NC 27707

919-323-3380

hilaryhklein@scsj.org

R. Stanton Jones

Elisabeth S. Theodore

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave. NW

Washington, DC 20001

202-942-5000

Hani Mirza

Joaquin Gonzalez

TEXAS CIVIL RIGHTS PROJECT

1405 Montopolis Drive

Austin, TX 78741

512-474-5073

Aaron E. Nathan

Diana C. Vall-llobera

WILLKIE FARR & GALLAGHER LLP

1875 K Street, N.W.

Washington, DC 20006

202-303-1000

Nickolas Spencer

SPENCER & ASSOCIATES, PLLC

9100 Southwest Freeway, Suite 122

Houston, TX 77074

713-863-1409

DECEMBER 2023

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