Robinson v. Ardoin
| Citation | 37 F.4th 208 |
| Decision Date | 12 June 2022 |
| Docket Number | 22-30333 |
| Parties | Press ROBINSON; Edgar Cage; Dorothy Nairne ; Edwin Rene Soule; Alice Washington ; Clee Earnest Lowe; Davante Lewis; Martha Davis; Ambrose Sims; National Association for the Advancement of Colored People Louisiana State Conference, also known as NAACP ; Power Coalition for Equity and Justice, Plaintiffs—Appellees, v. Kyle ARDOIN, in his official capacity as Secretary of State for Louisiana, Defendant—Appellant, Clay Schexnayder; Patrick Page Cortez; Louisiana Attorney General Jeff Landry, Intervenor Defendants—Appellants, Edward Galmon, Sr.; Ciara Hart; Norris Henderson; Tramelle Howard, Plaintiffs—Appellees, v. Kyle Ardoin, in his official capacity as Secretary of State for Louisiana, Defendant —Appellant, Clay Schexnayder; Patrick Page Cortez; Louisiana Attorney General Jeff Landry, Movants—Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Leah Camille Aden, Esq., Kathryn C. Sadasivan, NAACP, Legal Defense & Educational Fund, Incorporated, New York, NY, John Nelson Adcock, New Orleans, LA, Adam Savitt, Paul, Weiss, Rifkind, Wharton & Garrison, L.L.P., New York, NY, for Plaintiffs - Appellees Press Robinson, Edgar Cage, Dorothy Nairne, Edwin Rene Soule, Alice Washington, Clee Earnest Lowe, Davante Lewis, Martha Davis, Ambrose Sims, National Association for the Advancement of Colored People Louisiana State Conference, and Power Coalition for Equity and Justice.
Jennifer Wise Moroux, Walters Papillion Cullens Thomas, L.L.C., Baton Rouge, LA, Olivia Nicole Sedwick, Elias Law Group, L.L.P., Washington, DC, for Plaintiffs - Appellees Edward Galmon, Sr., Ciara Hart, Norris Henderson, and Tramelle Howard.
Alyssa Riggins, Nelson Mullins Riley & Scarborough, L.L.P., Raleigh, NC, John Carroll Walsh, Shows, Cali & Walsh, L.L.P., Baton Rouge, LA, for Defendant - Appellant.
Richard Bryan Raile, Renee Marie Knudsen, Baker & Hostetler, L.L.P., Washington, DC, Patrick T. Lewis, Baker & Hostetler, L.L.P., Cleveland, OH, Michael Warren Mengis, Baker & Hostetler, L.L.P., Houston, TX, for Intervenor Defendants - Appellants Clay Schexnayder and Patrick Page Cortez.
Elizabeth Baker Murrill, Esq., Assistant Attorney General, Morgan Brungard, Office of the Attorney General for the State of Louisiana, Baton Rouge, LA, Angelique Duhon Freel, Esq., Jeffrey M. Wale, Esq., Assistant Attorneys General, Louisiana Department of Justice, Baton Rouge, LA, Phillip Michael Gordon, Holtzman Vogel Baran Torchinsky & Josefiak, P.L.L.C., Haymarket, VA, Shae Gary McPhee, Jr., Assistant Solicitor General, Louisiana Department of Justice, Office of the Solicitor General, New Orleans, LA, Jason Brett Torchinsky, Holtzman Vogel Baran Torchinsky & Josefiak, P.L.L.C., Washington, DC, for Intervenor Defendant - Appellant State of Louisiana - Attorney General Jeff Landry.
Edmund Gerard LaCour, Jr., Office of the Attorney General for the State of Alabama, Montgomery, AL, for Amici Curiae State of Alabama, State of Arkansas, State of Georgia, State of Indiana, State of Kentucky, State of Mississippi, State of Missouri, State of Montana, State of Oklahoma, State of South Carolina, State of Texas, and State of Utah.
Before Smith, Higginson, and Willett, Circuit Judges.
Before the court are three emergency motions to stay, pending appeal, an order of the district court that requires the Louisiana Legislature to enact a new congressional map with a second black-majority district. Although we must acknowledge that this appeal's exigency has left us little time to review the record, we conclude that, though the plaintiffs' arguments and the district court's analysis are not without weaknesses, the defendants have not met their burden of making a "strong showing" of likely success on the merits. Nor do we conclude that the cautionary principle from Purcell v. Gonzalez , 549 U.S. 1, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) (per curiam), prevents the ordered remedy from taking effect. So we vacate the administrative stay and deny the motion for stay pending appeal.
Nevertheless, we expedite this appeal to the next available merits panel, to be selected at random from the regular merits panels already scheduled to hear cases the week of July 4, 2022. Either before or after argument that week, that merits panel may, in its discretion, opt to reimpose a stay, and its more comprehensive review may well lead it to rule in the defendants' favor on the merits. The plaintiffs have prevailed at this preliminary stage given the record as the parties have developed it and the arguments presented (and not presented). But they have much to prove when the merits are ultimately decided.
A fuller account of this case's factual background and procedural history can be found in the district court's thorough opinion. Robinson v. Ardoin , No. 22-CV-211, ––– F.Supp.3d ––––, 2022 WL 2012389 (M.D. La. June 6, 2022). For purposes of this expedited decision, we summarize only the salient points. This case arises from Louisiana's congressional redistricting process. After the 2020 census, the state was apportioned six seats, the same number as during the previous redistricting cycle. The Louisiana Legislature thus enacted a map that, like the one in force during the last decade, created just one black-majority district, in the state's southeast. The Governor vetoed the map, but the Legislature overrode his veto on March 30, 2022. Later that day, the plaintiffs brought this action.
The plaintiffs claim that, under the Voting Rights Act ("VRA") as interpreted by the Supreme Court in Thornburg v. Gingles , 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), Louisiana was required to create a second black-majority district. They sought a preliminary injunction to require the Legislature to do so in time for the 2022 election.
After a five-day evidentiary hearing, the district court issued a 152-page ruling and order granting the plaintiffs' motion. The district court concluded that the plaintiffs had carried their burden under Gingles. That ruling meant that the plaintiffs had shown that (1) Louisiana's black population is sufficiently large and compact to form a majority in a second district, (2) the black population votes cohesively, and (3) whites tend to vote as a bloc usually to defeat black voters' preferred candidates. Id. at 50–51, 106 S.Ct. 2752. The district court gave the Legislature until June 20 to enact a remedial plan that would then be used in the November primary election.1
The defendant, along with two intervenors (collectively "the defendants"), appealed that decision, and that appeal will be decided in due course by a merits panel of this court. Today, as a motions ("administrative") panel, we consider only the defendants' emergency motions for stay pending appeal. To decide those motions, we consider "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Nken v. Holder , 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (quotation omitted).
We review the district court's legal conclusions de novo and its factual findings for clear error. NAACP v. Fordice , 252 F.3d 361, 364–65 (5th Cir. 2001). A finding is clearly erroneous where, after reviewing the entire record, we are "left with the definite and firm conviction" that the district court erred. Id. at 365 (quotation omitted).
We begin with the defendants' likelihood of success on the merits. The defendants posit four ways the district court erred. First , they say the court used an unduly expansive measure of the black voting-age population (BVAP). Landry Mot. at 16–17. Second , they claim the plaintiffs' illustrative plans relied on insufficiently compact districts. Ardoin Mot. at 8; Schexnayder Mot. at 12–15; Landry Mot. at 17–22. Third , they aver that if the state had implemented the plaintiffs' illustrative plans, it would have engaged in an unconstitutional racial gerrymander. Ardoin Mot. at 5–6; Schexnayder Mot. at 12–15; Landry Mot. at 23–24. Fourth , they contend that the plaintiffs failed to show white bloc voting in light of evidence indicating substantial white crossover voting. Ardoin Mot. at 7; Schexnayder Mot. at 8–12; Landry Mot. at 24–27.
The first Gingles precondition requires plaintiffs to show that a minority group "is sufficiently large and geographically compact to constitute a majority in a single-member district." Gingles , 478 U.S. at 50, 106 S.Ct. 2752. To do that, plaintiffs must first define the minority group.
The plaintiffs defined Louisiana's black population to include anyone who identifies as at least partially black. Robinson , ––– F.Supp.3d at ––––, 2022 WL 2012389, at *9. That metric, which the parties call "Any Part Black," would count as black a potential voter who identifies, for example, as both black and American Indian. The parties discussed two alternative metrics. One is "DOJ Black," which counts as black a voter who identifies as either solely black or as both black and white. Id. at ––––, 2022 WL 2012389, *20. The "DOJ Black" metric would not count as black a voter who identifies, for example, as both black and Asian. The other alternative, which the parties call "Single-Race Black," counts a voter as black only when the voter identifies as black and no other race. Id. at ––––, 2022 WL 2012389, *34.
The district court adopted the "Any Part Black" metric. Ibid. The defendants claim that decision "contorted" the first Gingles precondition. Landry Mot. at 16. They observe that the "Any Part Black" metric "includes persons who may be 1/7th Black and who also self-identify as both Black and Hispanic." Landry Mot. at 17.
True. But we do not appreciate that observation's significance. As the district court noted, the Supreme Court has confronted this question before.2 It...
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