Early in the 2020 legislative session, the full U.S. 5th Circuit Court of Appeals will consider whether a lower court erred in ordering the redrawing of Mississippi Senate District 22 to correct racial gerrymandering.
By the time the appeals court hears the oral arguments during the week of January 20, a new senator will have been elected on November 5 and would have been sworn in for the 2020 session, which starts January 7.
The 5th Circuit announced last week it would meet en banc (the entire court) to decide whether U.S. Judge Carlton Reeves of the Southern District of Mississippi ruled correctly in ordering the redrawing of the district.
Previously, Reeves’ decision was upheld earlier this summer by a three judge panel of the 5th Circuit by a 2-1 decision.
The entire 5th Circuit voted “on its own motion” to take up the case. Secretary of State Delbert Hosemann and Gov. Phil Bryant, who appealed Reeves’ decision, asked for more time to file a request asking for the full 5th Circuit to take up the case.
In court filings, attorneys for Hosemann and Bryant said they were “exploring possible resolution of this appeal in lieu of seeking rehearing or rehearing en banc.”
A majority of the 5th circuit voted not to wait for that “possible resolution” and to hear the case.
Before that rehearing, voters in District 22 will go to the polls in November to decide between former Democratic state Sen. Joseph Thomas, who was one of the plaintiffs filing the lawsuit saying the way District 22 was drawn diluted black voter strength, and long-time Republican operative and lobbyist Hayes Dent.
The 102-mile district, spanning parts of six counties, was drawn in the 2012 legislative session.
The northern portion of the district included the predominately African American Delta, but stretched all the way down to a heavily white portion of Madison County including south Madison County.
In redrawing the district during the 2019 session to adhere to Reeves’ decision, the Legislature added black voters in Sunflower County to District 22 and removed primarily white voting precincts in Bolivar County from the district and placed them in District 13. The result, according to the people who filed the lawsuit, was that African Americans had chances to maintain a black senator in District 13 and add one in District 22.
On social media, Bryant said, “Important decision ordering rehearing by the full 5th Circuit Court of Appeals. Under our system of federalism, the Mississippi Legislature not a single federal judge has the constitutional authority to apportion districts.”
Hosemann’s office had no comment other than that the November election would go forward under the new districts. Rob McDuff, one of the attorneys who filed the lawsuit, also had no comment other than to agree that the election would go on under the newly drawn districts.
Presumably, the 5th Circuit could reverse Reeves’ decision and order new elections in 2020.
Whatever happens will be temporary in that the Legislature will have to redraw all 52 Senate districts and 122 House districts before the 2023 elections to adhere to population shifts found by the 2020 census.
The 5th Circuit currently consists of 26 judges. Some of the members could recuse themselves from hearing the case.