Filed: Oct. 14, 2020
Latest Update: Oct. 15, 2020
Summary: Case: 20-50793 Document: 00515602362 Page: 1 Date Filed: 10/14/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 14, 2020 No. 20-50793 Lyle W. Cayce Clerk Mi Familia Vota; Texas State Conference of the NAACP; Guadalupe Torres, Plaintiffs—Appellants, versus Greg Abbott, Governor of the State of Texas; Ruth Hughs, Texas Secretary of State, Defendants—Appellees. Appeal from the United States District Court for the Western District o
Summary: Case: 20-50793 Document: 00515602362 Page: 1 Date Filed: 10/14/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 14, 2020 No. 20-50793 Lyle W. Cayce Clerk Mi Familia Vota; Texas State Conference of the NAACP; Guadalupe Torres, Plaintiffs—Appellants, versus Greg Abbott, Governor of the State of Texas; Ruth Hughs, Texas Secretary of State, Defendants—Appellees. Appeal from the United States District Court for the Western District of..
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Case: 20-50793 Document: 00515602362 Page: 1 Date Filed: 10/14/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
October 14, 2020
No. 20-50793 Lyle W. Cayce
Clerk
Mi Familia Vota; Texas State Conference of the
NAACP; Guadalupe Torres,
Plaintiffs—Appellants,
versus
Greg Abbott, Governor of the State of Texas; Ruth
Hughs, Texas Secretary of State,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:20-CV-830
Before Owen, Chief Judge, and Davis and Southwick, Circuit Judges.
Priscilla R. Owen, Chief Judge:
Mi Familia Vota, the Texas State Conference of the NAACP
(NAACP), and Guadalupe Torres (collectively the Plaintiffs) appeal the
dismissal of their claims challenging certain Texas voting procedures during
the COVID-19 pandemic. We affirm the judgment of the district court in
part, reverse the judgment with respect to the Voting Rights Act claim, and
remand that claim.
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No. 20-50793
I
Texas officials have taken steps to mitigate the risks associated with
the COVID-19 pandemic that voters may encounter. Among these are
advisories from the Secretary of State 1 and an Executive Order issued by
Texas Governor Greg Abbott. 2
The Secretary of State’s office issued an advisory urging poll workers
to wear face masks; recommending the use of signs to urge voters to wear
face masks while at the polls; advising how to use markings or tape to
facilitate social distancing; advising how to disinfect electronic voting
equipment; suggesting that polling locations provide styluses or swabs or
pencils with erasers or coffee stirrers for voters to use instead of touching
electronic voting devices; and explaining that if a poll worker could not
identify a masked voter, the worker could ask the voter to lower the mask
briefly to facilitate identification. Other advice was offered concerning
efforts that could and should be taken to mitigate exposure to and spread of
COVID-19.
In July 2020, Governor Abbott issued Executive Order GA-29. That
order expressed his views that
• “as Texas reopens in the midst of COVID-19, increased spread
is to be expected, and the key to controlling the spread and
keeping Texans safe is for all people to consistently follow good
hygiene and social-distancing practices,”
• “due to recent substantial increases in COVID-19 positive
cases, and increases in the COVID-19 positivity rate and
1
See, e.g., Tex. Sec’y of State, Election Advisory No. 2020-19 (June 18, 2020);
Tex. Sec’y of State, Election Advisory No. 2020-14 (Apr. 6, 2020).
2
Executive Order GA-29 (July 2, 2020).
2
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hospitalizations resulting from COVID-19, further measures
are needed to achieve the least restrictive means for reducing
the growing spread of COVID-19, and to avoid a need for more
extreme measures,”
• “given the current status of COVD-19 in Texas, requiring the
use of face coverings is a targeted response that can combat the
threat to public health using the least restrictive means, and if
people follow this requirement, more extreme measures may
be avoided,” and
• “wearing a face covering is important not only to protect
oneself, but also to avoid unknowingly harming fellow Texans,
especially given that many people who go into public may have
COVID-19 without knowing it because they have no
symptoms.” 3
That Executive Order, which went into effect July 3, 2020, provided:
Every person in Texas shall wear a face covering over the nose
and mouth when inside a commercial entity or other building
or space open to the public, or when in an outdoor public space,
wherever it is not feasible to maintain six feet of social
distancing from another person not in the same household. 4
Failure to wear a mask under these conditions is punishable by a fine,
but there are eleven enumerated exceptions or exemptions, including
children younger than ten, those with medical conditions or disabilities, while
eating or drinking or while seated at a restaurant to eat or drink, while
engaging in exercise outdoors and maintaining social distancing, while voting
3
Id.
4
Id.
3
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or assisting in the voting process, and while engaging in religious worship,
“though a face covering is strongly recommended.” 5
The Plaintiffs filed suit in July, after this Executive Order issued.
They allege that Black and Latino communities have been disproportionately
impacted by COVID-19 because these communities have experienced higher
infection, hospitalization, and death rates. They assert that Texas’s policies
and laws, “individually and cumulatively, operate to deny voters the right to
vote in a safe, free, fair, and accessible election.” Plaintiffs posit that long
lines, the use of electronic voting devices rather than paper ballots, limited
curbside voting, and the permissiveness of mask-wearing at polling locations
present substantial health risks that create fear of voting and therefore
infringe upon the right to vote. The Plaintiffs asserted causes of action under
the Fourteenth Amendment’s Due Process and Equal Protection Clauses,
the First Amendment, the Fifteenth Amendment, and section Two of the
Voting Rights Act.
Plaintiffs seek robust judicial involvement in Texas’s elections,
requesting an injunction ordering that Governor Abbott and Secretary of
State Hughs take specific, affirmative actions, identified in the prayer for
relief in their Complaint, which we quote in its entirety:
a. Order Defendants to modify in-person voting
procedures during the early voting period and on Election Day
to ensure that polling sites are safe and of low risk to the health
of all registered voters, and specifically order that Defendants:
i. Extend the period of early voting to begin on
October 5, 2020.
ii. Require voters, poll-workers, persons assisting
voters, and any other person at a polling site to wear a mask,
5
Id.
4
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including providing masks to persons who do not already have
one, with exceptions only for individuals who cannot wear
masks due to a disability;
iii. Allow counties to offer extended, temporary,
and/or mobile early voting locations with flexible hours and
days.
iv. Suspend the requirement that curbside voters
must qualify as having a disability or, alternatively, order that
any voter may identify as “disabled” due to the threat that the
coronavirus poses to his or her health and life, for the purpose
of being found eligible to vote curbside.
v. Open additional polling places and provide
enough voting booths and poll workers at each polling place to
ensure that voters are not required to wait more than twenty
minutes to vote, to minimize coronavirus transmission.
vi. Staff all polling places with sufficient number
of poll workers to keep voter lines to less than 20 minutes,
including by actively recruiting new poll workers who are not
at high risk for serious illness due to COVID-19.
vii. Prohibit the closure of polling places
currently scheduled to be available on Election Day. Should a
polling place need to be closed or moved in order to meet health
and safety requirements, require that a new polling place be
made available within the same voting precinct.
viii. In counties that use electronic voting
machines, including counties that participate in the
Countywide Polling place Program, make available sufficient
numbers of both paper ballots and electronic voting machines
so that voters have the option of voting by hand-marking a
paper ballot or by voting on the electronic voting machine, to
minimize the risk of coronavirus transmission.
ix. Revise voter identification requirements to
allow voters to show identification without requiring poll
workers to physically handle identification or documentation,
5
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apply the natural disaster exception to the pandemic, and allow
voters to sign affidavits regarding the natural disaster exception
at the polling place.
x. Ensure that poll workers are given protective
gear, including masks and gloves, in sufficient quantity to allow
poll workers to change protective gear frequently. Provide poll
workers with ample opportunity to wash their hands.
b. Order Defendants to enable counties that need to
revise election policies in order to protect voters’ health to do
so, provided that the proposed revisions do not violate any
relief ordered by this Court.
c. Order Defendants to rescind or modify any voting
practice or procedure deemed by this Court to unlawfully
discriminate against Black, Latino, or other underserved voters
on the basis of a protected characteristic, to eliminate such
discrimination.
d. Order that all such relief be extended until there are
no existing cases of coronavirus in the state of Texas; or until
there is a vaccine freely and readily available to all Texans,
whichever comes sooner.
In their motion for a preliminary injunction, the Plaintiffs made clear
that the bases for the request for injunctive relief were only the First
Amendment and the Due Process Clause of the Fourteenth Amendment.
They explained that “[a]lthough Plaintiffs’ complaint also alleges violations
of the Equal Protection Clause, Fifteenth Amendment, and Section 2 of the
Voting Rights Act based on race or ethnicity, Compl. ¶¶ 202-07, those claims
do not form the basis of this motion.”
In their brief before this court, the Plaintiffs have abandoned their
request that early voting be ordered to begin on October 5, 2020, and have
narrowed their challenge to Executive Order GA-29 and four sections of the
Texas Election Code:
6
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• Executive Order GA-29, requiring masks to be worn in public places
but exempting voters and poll workers.
• Texas Election Code section 64.009, permitting voters who are
“physically unable to enter” polling locations to vote curbside.
• Texas Election Code section 43.007, permitting certain counties to
participate in Texas’s Countywide Polling Place Program if those
counties meet particular criteria, including the use of electronic voting
machines, which means that those counties do not provide paper
ballots.
• Texas Election Code sections 85.062-85.063, concerning the number
and location of polling places during early voting.
The district court granted the State’s motion to dismiss, holding that
the case presented non-justiciable political questions. Governor Abbott and
Secretary Hughs maintain that the dismissal was appropriate on other
grounds as well, including sovereign immunity and lack of standing. We
review all of these issues de novo.
II
The Supreme Court’s most recent decision addressing whether an
issue constituted a political question is Rucho v. Common Cause, in which the
Court held that claims of excessive partisanship in districting are not
justiciable. 6 In Rucho, legislatures in two states had enacted congressional
redistricting plans that were “highly partisan, by any measure.” 7 The
Supreme Court framed the issue before it as “whether there is an
6
139 S. Ct. 2484, 2491 (2019).
7
Id. at 2491.
7
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‘appropriate role for the Federal Judiciary’ in remedying the problem of
partisan gerrymandering—whether such claims are claims of legal right,
resolvable according to legal principles, or political questions that must find
their resolution elsewhere.” 8 The Court concluded that partisan
gerrymandering claims constitute political questions because they “lack
‘judicially discoverable and manageable standards for resolving [them].’” 9
The Court explained that “[f]ederal judges have no license to reallocate
political power between the two major political parties, with no plausible
grant of authority in the Constitution, and no legal standards to limit and
direct their decisions.” 10 The Court emphasized that “‘[j]udicial action
must be governed by standard, by rule,’ and must be ‘principled, rational,
and based upon reasoned distinctions’ found in the Constitution or laws.” 11
The Rucho decision strongly indicates that, by contrast, race discrimination
and Voting Rights Act claims, like those asserted by the Plaintiffs, do not
present political questions.
In Rucho, the Supreme Court recognized that “[i]n two areas—one-
person, one-vote and racial gerrymandering—our 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.” 12 The Rucho decision
recognized that “[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
8
Id. at 2494.
9
Id.
10
Id. at 2507.
11
Id. (quoting Vieth v. Jubelirer,
541 U.S. 267, 296-97 (2004) (plurality opinion)).
12
Id. at 2495-96.
8
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grounds other than race, are of course presumptively invalid.” 13 The Court
recounted that it had applied those principles in “concluding that a challenge
to an ‘uncouth twenty-eight sided’ municipal boundary line that excluded
black voters from city elections stated a constitutional claim.” 14 Well-
established standards exist and have been applied in cases of race
discrimination but not to partisan gerrymandering, Rucho noted. “[O]ur
country’s long and persistent history of racial discrimination in voting—as
well as our Fourteenth Amendment jurisprudence . . . has reserved the
strictest scrutiny for discrimination on the basis of race.” 15
Our court has set forth the standards that govern a discriminatory
effect claim under section 2 of the Voting Rights Act:
[1] [T]he challenged standard, practice, or procedure must
impose a discriminatory burden on members of a protected
class, meaning that members of the protected class have less
opportunity than other members of the electorate to participate
in the political process and to elect representatives of their
choice, [and]
[2] [T]hat burden must in part be caused by or linked to social
and historical conditions that have or currently produce
discrimination against members of the protected class. 16
We conclude that the Plaintiffs’ racial discrimination and Voting
Rights Act claims do not present political questions. We do not consider
whether the Plaintiffs’ remaining claims constitute political questions
13
Id. at 2496.
14
Id.
15
Id. at 2502.
16
Veasey v. Abbott,
830 F.3d 216, 244 (5th Cir. 2016).
9
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because all of their claims were properly dismissed on other grounds.
III
Governor Abbott and Secretary Hughs assert sovereign immunity
based on the Eleventh Amendment because a suit against a state official in
her official capacity is essentially a suit against the State. However, the
Supreme Court’s decision in Ex parte Young 17 allows injunctive or declaratory
relief against a state official in her official capacity, provided the official has a
sufficient “connection” with the enforcement of an allegedly
unconstitutional law. 18
We first consider the claims other than those based on the Voting
Rights Act and conclude that the Governor does not have authority to
enforce, or a role to play in enforcing, the Election Code provisions or the
executive order at issue. The Governor of Texas has no connection,
statutory or otherwise, to the enforcement of sections 64.009, 43.007,
85.062, or 85.063 of the Texas Election Code.
Governor Abbott promulgated Executive Order GA-29. But the
statutory authority under Texas Government Code § 418.012 to issue,
amend or rescind an Executive Order 19 “is not the power to enforce it,” as
17
209 U.S. 123, 157 (1908) (“In making an officer of the state a party defendant in
a suit to enjoin the enforcement of an act alleged to be unconstitutional, it is plain that such
officer must have some connection with the enforcement of the act, or else it is merely
making him a party as a representative of the state, and thereby attempting to make the
state a party.”).
18
In re Abbott, 956 F.3d 696, 708 (5th Cir. 2020).
19
Tex. Gov. Code § 418.012 (“Under this chapter, the governor may issue
executive orders, proclamations, and regulations and amend or rescind them. Executive
orders, proclamations, and regulations have the force and effect of law.”).
10
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this court explained in In re Abbott. 20 For example, were a court to conclude
that the exclusion from the mask requirement in Executive Order GA-29 for
voters and poll workers was unconstitutional, the Governor would have no
authority to fine those who refused to wear a mask while in polling places.
Enforcement actions would be undertaken by local authorities. There is no
suggestion in any statutes or regulations that Governor Abbott has authority
to enforce or would play a role in enforcing the executive order at issue. 21
The Secretary of State of Texas similarly has no connection to the
enforcement of Executive Order GA-29, or Texas Election Code §§ 85.062-
85.063.
The Secretary of State’s connection to Texas Election Code § 43.007,
however, requires more detailed analysis. Section 43.007 requires counties
to use electronic voting devices rather than paper ballots in order to be
eligible to participate in Texas’s Countywide Polling Place Program. 22 The
Secretary of State is required by Texas Election Code § 31.014 to provide
standards for certifying electronic devices and may exclude counties whose
electronic voting devices do not meet certain standards from the Program.
Section 31.014 references section 43.007 multiple times. One relevant
subsection provides, in part, that the Secretary
shall adopt rules that require a device described by this section
used during the early voting period or under the countywide
20
956 F.3d at 709.
21
See Morris v. Livingston, 739 F.3d 749, 746 (5th Cir. 2014) (“Section 501.063 does
not specially task Governor Perry with its enforcement, or suggest that he will play any role
at all in its enforcement.”).
22
Tex. Election Code § 43.007(d)(4) (“The secretary of state shall select to
participate in the program each county that: . . . uses direct recording electronic voting
machines . . . .”).
11
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polling place program under Section 43.007 to update data in
real time. If a county uses a device that does not comply with
the rule in two consecutive general elections for state and
county officers, the secretary of state shall assess a
noncompliance fee. The noncompliance fee shall be set at an
amount determined by secretary of state rule. 23
But the Plaintiffs’ claim regarding section 43.007 is based on its
prohibition of the use of paper ballots for those counties participating in the
Countywide Polling Place Program. If a court were to conclude that
electronic voting as the exclusive means of voting was unconstitutional as
applied to the Plaintiffs, the court could order the Secretary not to enforce
that requirement. But that still would not require counties who currently are
participating in the Countywide Polling Place Program to print and use paper
ballots. The Secretary is not responsible for printing or distributing ballots. 24
That responsibility falls on local officials. It would remain their choice as to
whether to incur the expense of printing, distributing and counting paper
ballots instead of utilizing the electronic devices they already have in place.
Directing the Secretary not to enforce the electronic-voting-devices-
only provision in section 43.007 would not afford the Plaintiffs the relief that
they seek, and therefore, the Secretary of State “is not a proper defendant.” 25
Although a court can enjoin state officials from enforcing statutes, such an
injunction must be directed to those who have the authority to enforce those
statutes. In the present case, that would be county or other local officials. No
23
Tex. Election Code § 31.014(c).
24
See Tex. Election Code §§ 52.002, 31.043; see also In re Cercone, 323
S.W.3d 293, 294 (Tex. App. 2010) (pet. denied) (recognizing, in a suit regarding an election
in Dallas County, that the “Elections Administrator for Dallas County . . . is responsible
for printing and mailing the general election ballots”).
25
In re Abbott, 956 F.3d 696, 709 (5th Cir. 2020) (quoting
Morris, 739 F.3d at 746).
12
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county or local official is a party to the current suit and cannot be enjoined in
this suit to print and use paper ballots.
Accordingly, with the exception of the Voting Rights Act claim, the
Eleventh Amendment bars all the claims against Governor Abbott and
Secretary Hughs. There is no sovereign immunity with respect to the Voting
Rights Act claims. Our court has held that the Voting Rights Act, “which
Congress passed pursuant to its Fifteenth Amendment enforcement power,
validly abrogated state sovereign immunity.” 26
IV
Much of the relief sought by the Plaintiffs to remedy the alleged
Voting Rights Act injuries and the injuries from alleged constitutional
violations (were they not barred by sovereign immunity) is beyond the power
of a court to grant. It is one thing for a court to strike down a law that violates
the Voting Rights Act or the Constitution and to enjoin a state official from
enforcing it. It is entirely another matter for a court to order an executive
performing executive functions, or an executive performing essentially
legislative functions, to promulgate directives mandated by the court. Of
course, federal courts may draw redistricting maps in certain limited
circumstances, 27 but that narrow exception does not provide authority for
courts to order state officials to promulgate legislation, regulations or
executive orders. Even in redistricting cases, the “primary locus of
responsibility” for promulgating legislation “does not shift” to federal
26
OCA-Greater Hous. v. Texas, 867 F.3d 604, 614 (5th Cir. 2017); see also Fusilier
v. Landry,
963 F.3d 447, 455 (5th Cir. 2020).
27
See, e.g., League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 415 (2006);
Wise v. Lipscomb,
437 U.S. 535, 540 (1978).
13
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courts. 28
The Texas Legislature has given Governor Abbott the authority to
issue executive orders in times of emergencies, 29 and those orders have the
force of a law. 30 But a court cannot compel the Governor to issue orders as a
means of redressing claims under the Voting Rights Act or the Constitution.
Neither the Fifteenth Amendment nor any other provision in the
Constitution permits a court to dictate to legislative bodies or executives
what laws and regulations they must promulgate.
As the Sixth Circuit has explained:
Federal Courts do have jurisdiction and power to pass
upon the constitutionality of Acts of Congress, but we are not
aware of any decision extending this power in Federal Courts
to order Congress to enact legislation. To do so would
constitute encroachment upon the functions of a legislative
body and would violate the time-honored principle of
separation of powers of the three great departments of our
Government. This principle is equally applicable to the power
of a Federal Judge to order a state legislative body to enact
legislation. The enactment of legislation is not a ministerial
function subject to control by mandamus, prohibition or the
injunctive powers of a court. 31
28
LULAC, 548 U.S. at 415.
29
Tex. Gov. Code § 418.014.
30
Tex. Gov. Code § 418.012 (“Under this chapter, the governor may issue
executive orders, proclamations, and regulations and amend or rescind them. Executive
orders, proclamations, and regulations have the force and effect of law.”).
31
Smith & Lee Assoc., Inc. v. City of Taylor, 102 F.3d 781, 797 (6th Cir. 1996)
(quoting Joseph Skillken & Co. v. City of Toledo,
528 F.2d 867, 878 (6th Cir.1975), vacated
and remanded sub. nom. Joseph Skilken & Co. v. City of Toledo, Ohio,
429 U.S. 1068 (1977),
decision adhered to on remand,
558 F.2d 350 (6th Cir.1977)).
14
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In City of Taylor, the district court had ordered the City to amend its zoning
ordinance to adopt the court’s definition of “family.” 32 The Sixth Circuit
held that “the District Court exceeded its proper scope of authority when it”
did so, “remind[ing] district courts that Article III powers are finite.” 33
The Ninth Circuit has held that principles of federalism do not permit
federal courts to order relief that would require the Governor of a State to
essentially enact legislation. 34 In M.S. v. Brown, the Oregon legislature had
passed a statute permitting the issuance of driver’s cards to individuals who
could not prove they were United States citizens, 35 but the voters of that state
had exercised their referendum power to reject that legislation, and
accordingly, the law had never gone into effect. 36 The plaintiff argued that
the referendum was motivated by racial animus and sought relief ordering the
Governor of Oregon to issue driver’s cards in accordance with the legislation
that had been rejected by the voters. 37 The Ninth Circuit affirmed the district
court’s dismissal of the claims, reasoning “[i]n particular, we have explained
that ‘[p]rinciples of federalism counsel against’ awarding ‘affirmative
injunctive and declaratory relief’ that would require state officials to repeal
an existing law and enact a new law proposed by plaintiffs.” 38
32
Id.
33
Id.
34
M.S. v. Brown, 902 F.3d 1076, 1089 (9th Cir. 2018).
35
Id. at 1086.
36
Id. at 1084.
37
Id. at 1081-82.
38
Id. at 1089 (quoting Jacobson v. Tahoe Reg’l Plan. Agency,
566 F.2d 1353, 366 (9th
Cir. 1977), aff’d in part, rev’d in part on other grounds sub nom. Lake Country Estates, Inc. v.
Tahoe Reg’l Plan. Agency,
440 U.S. 391 (1979)).
15
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An examination of the relief that the Plaintiffs seek in the case before
us reveals that in many instances, court-ordered-relief would require the
Governor or the Secretary of State to issue an executive order or directive or
to take other sweeping affirmative action. If implemented by the district
court, many of the directives requested by the Plaintiffs would violate
principles of federalism.
In M.S. v. Brown, the Ninth Circuit stated in dicta that “federal courts
have jurisdiction to order a remedy requiring the enactment of legislation in
certain narrow circumstances, such as where fundamental rights are at
stake.” 39 We do not consider today whether there might be such narrow
circumstances and if so, what they might be.
V
The Plaintiffs’ Voting Rights Act claim does not present a political
question and is not barred by sovereign immunity. The remaining question
is whether relief could be granted by the district court at this time that would
redress their alleged injury, were the district court to conclude that there has
been a Voting Rights Act violation.
As discussed above, the district court would not have authority to
order the Governor or Secretary of State to promulgate regulations or
legislation. To the extent that the requests for relief specified in the
Complaint would not fall within that category of relief, we are mindful of the
Supreme Court’s repeated admonishment that “lower federal courts should
ordinarily not alter the election rules on the eve of an election.” 40
The Plaintiffs seek to overhaul Texas’s voting scheme. Early voting
39
Id. at 1087.
40
Republican Nat’l Comm. v. Democratic Nat’l Comm.,
140 S. Ct. 1205, 1207 (2020).
16
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in Texas commenced October 13, 2020. The changes sought by the Plaintiffs
by and large would up-end the process. In large measure, it would be a futile
act to remand the Voting Rights Act claim for plenary consideration with
regard to the November 2020 election because it would be inappropriate for
the district court to grant much of the requested relief with the election
ongoing.
We see a possible exception, however, with regard to the November
2020 election. Were the district court to conclude that the exemption from
wearing a mask in public places contained in Executive Order GA-29 for poll
workers, voters, and others in polling places violated section 2 of the Voting
Rights Act, the district court might excise that provision if it concluded that
this would redress the injuries the Plaintiffs have alleged. It is at least
conceivable that such a remedy would not materially or substantially affect
the ongoing election, but that would be a matter for the district court to
determine.
We accordingly reverse the district court’s judgment in part and
remand the Voting Rights Act claim for further proceedings in the district
court, consistent with this opinion.
* * *
We AFFIRM the judgment of the district court in part. We
REVERSE the district court’s judgment with regard to the Voting Rights
Act claim and REMAND that claim to the district court.
17
