December 7, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • Petteway v. Galveston County, 23-40582, appeal from S.D. Tex.
    • per curiam (Richman, Jones, Smith, Barksdale, Elrod, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, JJ., voting for stay; Stewart, Southwick, Haynes, Graves, Higginson, Douglas, JJ., voting against stay); Oldham, J., concurring (joined by Jones, Smith, Barksdale, Elrod, Willett, Duncan, Engelhardt, Wilson, JJ.); Richman, C.J., concurring; Ho, J., concurring (joined by Elrod, J.); Higginson, J., dissenting (joined by Stewart, Graves, Douglas, JJ.); voting rights, Voting Rights Act, stay
    • Granting stay pending en banc appeal proceedings of district court order redrawing city council districts under Section 2 of the Voting Rights Act by using aggregation of different minority groups to determine that the Council’s district boundaries were discriminatory.
    • In Judge Oldham’s concurrence, he stressed that the principle in Purcell v. Gonzales, 549 U.S. 1 (2006), which “requires courts to consider the effect of late-breaking judicial intervention on voter confusion and election participation,” requires a stay: “Absent a stay, Galveston County’s voters would be forced to vote under the new Judicial Map even before we could determine whether VRA § 2 or the Fourteenth Amendment allowed that result. On November 30, 2023, the district court entered an order implementing the Judicial Map. That was less than two weeks before Texas’s filing deadline on December 11, Moreover, our next en banc sitting is January 23–25, 2024. So even if we were to hear the case in January and release a decision on the lawfulness of the maps on the same day we heard argument, it would be only 42 days before the Texas primary election on March 5, 2024. Even that is far too late for a federal court to tinker with the machinery of a state election and to displace the Original Map.” He then briefly addressed his view of the merits, opining that the principle of aggregation “would read § 2 to require race-based redistricting with no logical endpoint. The County has shown a likelihood of success in arguing that is unlawful.”
    • Chief Judge Richman concurred, noting that she “remain[s] open on the underlying merits and await full briefing, argument, and deliberation before deciding the important issues presented in this appeal. But our court is confronted with deciding, now, which map is going to apply. We must do so based on neutral principles. The Supreme Court has provided guidance, which we must apply, and that guidance is found in Purcell[.]” She acknowledged the tension on the success-on-the-merits prong, in light of Circuit precedent supporting the panel opinion, but an existing Circuit-split on the issue; but she resolved a stay was required by the Purcell analysis to avoid public confusion and unnecessary shifting of the electoral process with an election occurring so soon.
    • Judge Ho concurred, agreeing with the Purcell analysis, but separately addressed the setting of the en banc argument for May instead of the January sitting. He noted that there was no way to know how long every member of the en banc Court would need to decide the matter, and then for the Supreme Court to complete any review of that eventual decision, then wrote, “I’m aware of no good reason why we cannot add this matter to our January 2024 en banc docket. On various occasions, our court has shown that we can act expeditiously when necessary. Given the importance of the issues presented, there’s every reason to do so here.” In Chief Judge Richman’s concurrence, she had noted that she, too, would support a January sitting, but that the full Court had voted to set the en banc argument for May.
    • Judge Higginson dissented. He would hold that the stay-request failed at the first step, likelihood of success on the merits, observing that only one divided circuit has rejected the aggregation approach to § 2 of the VRA. “[O]ur court’s stay, compounded by two interrelated decisions we also take—revisiting settled, thirty-five year old precedent yet calendaring that re-argument six months in the future—creates the very problem the Supreme Court in Purcell told courts to avoid: The stay imposed today will last through the May argument until we issue our decision, which may be months later, on the eve of the election or later.”

Unpublished

  • U.S. v. Ritzler, 23-10481, appeal from N.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Woods, 23-20059, appeal from S.D. Tex.
    • per curiam (Richman, Stewart, Hanks, by designation), criminal, sentencing
    • Affirming 240-month sentence on conviction of aiding and abetting kidnapping.
  • U.S. v. Walker, 23-30381, appeal from W.D. La.
    • per curiam (Willett, Duncan, Douglas), criminal, sentencing
    • Affirming 210-month sentence on conviction of conspiring to distribute and to possess with the intent to distribute methamphetamine and to possessing a firearm in furtherance of a drug trafficking crime.
  • Calzada v. Zarate, 23-50361, appeal from W.D. Tex.
    • per curiam (Richman, Stewart, Hanks, by designation), § 1983
    • Affirming dismissal of § 1983 claims arising from plaintiff’s misdemeanor arrest.
  • U.S. v. Biester-Villeda, 23-50649, appeal from W.D. Tex.
    • per curiam (Jolly, Engelhardt, Douglas), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry.