Thomas v. Bryant

• Decision Date: 22 March 2019
• Docket Number: No. 19-60133,19-60133
• Citation: 919 F.3d 298
• Parties: Joseph THOMAS; Vernon Ayers; Melvin Lawson, Plaintiffs - Appellees v. Phil BRYANT, Governor of the State of Mississippi; Delbert Hosemann, Secretary of State of the State of Mississippi, both in the official capacities of their own offices and in their official capacities as members of the State Board of Election Commissioners, Defendants - Appellants
• Court: U.S. Court of Appeals — Fifth Circuit

919 F.3d 298

Joseph THOMAS; Vernon Ayers; Melvin Lawson, Plaintiffs - Appellees

v.Phil BRYANT, Governor of the State of Mississippi; Delbert Hosemann, Secretary of State of the State of Mississippi, both in the official capacities of their own offices and in their official capacities as members of the State Board of Election Commissioners, Defendants - Appellants

No. 19-60133

United States Court of Appeals, Fifth Circuit.

FILED March 22, 2019

Robert Bruce McDuff, Esq., Beth Levine Orlansky, Mississippi Center for Justice, Jackson, MS, Arusha Gordon, Jon Marshall Greenbaum, Esq., Director, Lawyers' Committee for Civil Rights Under Law, Washington, DC, Caitlyn E. Silhan, Waters & Kraus, L.L.P., Dallas, TX, Ellis Turnage, Turnage Law Office, Cleveland, MS, for Plaintiffs-Appellees.

Michael Brunson Wallace, Esq., Charles Edward Cowan, Jackson, MS, T. Russell Nobile, Gulfport, MS, Wise Carter Child & Caraway, P.A., Brian Parker Berry, Tommie S. Cardin, Butler Snow, L.L.P., Ridgeland, MS, for Defendants-Appellants.

Joseph Henry Ros, Esq., Currie, Johnson & Myers, P.A., Biloxi, MS, for Amicus Curiae Judicial Watch, Incorporated.

Before DENNIS, CLEMENT, and COSTA, Circuit Judges.

GREGG COSTA, Circuit Judge:

A district court found that the boundaries for Mississippi State Senate District 22 dilute African-American voting strength and prevent those citizens from having the equal opportunity "to participate in the political process and to elect representatives of their choice" that the Voting Rights Act guarantees. 52 U.S.C. § 10301(b). To remedy the violation, the district court switched 28 precincts between District 22 and a bordering district. The Governor and Secretary of State seek a stay of the final judgment.

I.

Most of District 22 lies in the heart of the Mississippi Delta. Those unfamiliar with the state’s geography might think that the Mississippi Delta is in the southern portion of the state that is closer to the mouth of the Mississippi River. But the "Delta" refers not to the outlet of that mighty river into the Gulf of Mexico, but to the alluvial plain between the Mississippi River and the Yazoo River. John M. Barry, RISING TIDE: THE GREAT MISSISSIPPI FLOOD OF 1927 AND HOW IT CHANGED AMERICA 96 (1997). It is located in the northwest section of Mississippi and looks like an "elongated diamond." Id . The district court recited this colorful description of its boundaries: "The Mississippi Delta begins in the lobby of the Peabody Hotel [in Memphis] and ends on Catfish Row in Vicksburg." David L. Cohn, GOD SHAKES CREATION (1935).

The sediment that the Mississippi River deposited in this region over the millennia made Delta soil some of the richest in the world. Barry, supra, at 97. And that soil made the Delta one of the leading cotton-producing areas in the world. One historian compared the influence the Delta once held over global cotton prices to the modern influence of Saudi Arabia over oil prices. Sven Beckert, EMPIRE OF COTTON: A GLOBAL HISTORY 113 (2014).

But before agriculture could prosper in the Delta its forests of hardwood trees had to be cleared. Slaves were forced to begin that process, and emancipated slaves finished it in the latter part of the nineteenth century. Since that time, African-Americans have been a majority in the Delta. In the early twentieth century, they made up almost 90% of the region’s population. Barry, supra , at 125 (noting that in 1908 the Delta had "a black population of at least 171,209" and "a white population of 24,137"). The Great Migration to the north reduced the African-American percentage, but they remain a sizeable majority in the region.

Of course, for most of their time laboring in the Delta, African-Americans could not vote. The Voting Rights Act changed that. It has resulted in numerous African-Americans being elected to office in the Delta. Indeed, the State of Mississippi has more African-American elected officials than any other state. U.S. Census Bureau, STATISTICAL ABSTRACT OF THE UNITED STATES : 2011, 258 (130th ed.).

But in places like the state legislature, African-Americans have still not achieved political power in Mississippi that comes close to their share of the population. This case involves a claim that one state senate district contributed to that underrepresentation by diluting the voting strength of African-Americans that Delta demographics and geography should otherwise support and contributed to that underrepresentation.

District 22 includes all or part of five Delta counties: Bolivar, Humphreys, Sharkey, Washington, and Yazoo. It also includes parts of one non-Delta county: Madison. The addition of the white-majority Madison County precincts in the last redistricting reduced the African-American percentage in District 22. Overall the district still has an African-American majority, but just barely at 50.7%.¹ Without the non-Delta precincts from Madison County, that percentage would be much higher.

The candidate preferred by the black majority did not prevail in the 2015 election. The losing candidate those voters did prefer (Joseph Thomas), along with two voters (Vernon Ayers and Melvin Lawson), brought this lawsuit in 2018 alleging that the district violated of Section 2 of the Voting Rights Act.

Last month, the district court held a bench trial and agreed. It concluded that the threshold Gingles factors for establishing vote dilution existed. The African-American population is "sufficiently large and geographically compact" to constitute a majority with electoral power in the district; that racial group is politically cohesive; but the white population voted as a bloc to prevent African-Americans from electing their chosen candidate. LULAC v. Perry , 548 U.S. 399, 425, 126 S.Ct. 2594, 165 L.Ed.2d 609 (2006). The bloc voting by both racial groups was stark: in 10 elections within district 22, the candidate favored by African-Americans received between 82% and 93% of their vote but only between 8% and 19% of the white vote.

The district court then followed the statutory directive to consider the "totality of circumstances" in determining whether African-Americans "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 52 U.S.C. § 10301(b) ; LULAC , 548 U.S. at 425–26, 126 S.Ct. 2594. It credited Plaintiffs’ expert’s analysis of voter participation as more rigorous and concluded that African-American turnout was depressed in off-year elections—that is, odd-year elections without federal races—which is when Mississippi elects its legislature. The district court also highlighted the persistent representation gap in the Mississippi Senate, as well as substantial socioeconomic differences between black voters and white voters in the district.

After finding a Voting Rights Act violation, the court initially declined to order a remedy so "the Mississippi Legislature [could] consider[ ] whether to redraw the District and extend the candidate qualification deadline." Although the primary and general elections were months away, the deadline for candidate filing was March 1.

A flurry of procedural moves followed at warp speed. Three days after the court made its trial findings, the Governor and Secretary of State (Defendants)² filed a motion a motion to stay with the district court and also filed an appeal, arguing that the ruling was an appealable interlocutory injunction. Less than a week later, they asked this court to stay the district court’s ruling. That same day, Plaintiffs asked the court to extend the qualification deadline in District 22 and bordering District 23 (the other district affected by the proposed remedy) by two weeks. Later that day, the district court ordered Defendants to update it on any progress, if any, in legislative redrawing of District 22.

The next day, Defendants filed a brief opposing Plaintiffs’ motion to extend the qualification deadline, in which they stated that they had contacted the leadership of the legislative chambers. The Senate leaders had said that "should the stay motions pending before [the district court] and the Fifth Circuit be denied, the Senate desire[d] the opportunity to enact a new redistricting plan redrawing Senate District 22." Late that same day, the district court ruled that, because the legislature was unwilling to act, the first map drawn by one of Plaintiffs’ experts would be adopted as the boundaries of Districts 22 and 23. The court also moved the qualification deadline to March 15 for the two affected senate districts. The court also declined to enter a stay and entered final judgment.

The final judgment caused our court to dismiss the appeal of the preliminary ruling. Thomas v. Bryant , 2019 WL 994034 (5th Cir. Feb. 28, 2019). But by that time the Defendants had already appealed from the final judgment, and not long after that they sought a stay pending the new appeal, which is the motion before this panel.³

This is the effect of the final judgment: It switches some precincts between Districts 22 and 23. It extends the candidate filing deadline to March 15. In terms of other upcoming deadlines, the primary election is August 6, with a June 22 deadline to send ballots to troops overseas. The general election is November 5.

II.

The stay Defendants seek is an extraordinary remedy. Nken v. Holder , 556 U.S. 418, 437, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (Kennedy, J., concurring). It is also an equitable one committed to this court’s discretion. Id . at 433, 129 S.Ct. 1749 ; Ruiz v. Estelle , 666 F.2d 854, 856 & n.4 (5th Cir. 1982). Four factors guide the exercise of our discretion: 1) whether the applicant has made a strong showing of likelihood to succeed on the merits; 2) whether the movant will be irreparably harmed absent a stay; 3) whether issuance of a stay will substantially injure other interested parties; and 4) where the public interest lies. Nken , 556 U.S. at 434, 129 S.Ct. 1749. The first two factors are...