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Petteway v. Henry

United States Court of Appeals, Fifth Circuit

December 17, 2013

The Honorable Terry PETTEWAY; The Honorable Derrec Rose; The Honorable Michae Montez; The Honorable Penny Pope; The Honorable Sonny James; The Honorable Stephe Holmes; The Honorable Patric Doyle; Roosevelt Henderson, Plaintiffs-Appellees
v.
The Honorable Mark HENRY; Galveston County, Texas, Defendants-Appellants.

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Chad Wilson Dunn (argued), Esq., Houston, TX, Neil G. Baron, Dickinson, TX, Melissa Castro Killen, Kaufman & Killen, Incorporated, Jose Garza (argued), San Antonio, TX, for Plaintiffs-Appellees.

Joseph M. Nixon (argued), Noel Terry Adams, Jr., John Koetting Broussard, Jr., Kelly Hunsaker Leonard, Beirne, Maynard & Parsons, L.L.P., Houston, TX, James Edwin Trainor, III, Beime, Maynard & Parsons, L.L.P., Austin, TX, for Defendants-Appellants.

Appeal from the United States District Court for the Southern District of Texas.

Before JOLLY, DeMOSS, and SOUTHWICK, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal presents only the question of whether the Plaintiffs are prevailing parties in a voting rights case, entitling them to attorney's fees. The underlying case arises from a dispute between the Plaintiffs— seven elected officials and one citizen of Galveston County, Texas— and Galveston County, [1] challenging the County's redistricting following the 2010 census, on grounds that the County's proposed electoral maps violated the Constitution and the Voting Rights Act. At the conclusion of the adversary proceeding, the Plaintiffs moved for the award of attorney's fees in accordance with 42 U.S.C. § 1973 l (e). The County opposed the award of attorney's fees on the grounds that the Plaintiffs were not prevailing parties. The district court ruled in favor of the Plaintiffs and awarded fees. The County now appeals. For the reasons that follow, we hold that the Plaintiffs are not prevailing parties and accordingly, are not entitled to attorney's fees. We therefore REVERSE the judgment of the district court and REMAND for entry of judgment for the County.

I.

The Voting Rights Act of 1965 requires that certain jurisdictions with histories of voting discrimination, known as " covered jurisdictions," receive specified approval before implementing changes to any " standard, practice, or procedure with respect to voting...." 42 U.S.C. § 1973c(a). The County is a covered jurisdiction. Before making changes to its election districts, the County must receive preclearance for those changes either by filing a declaratory judgment action in the United States District Court for the District of Columbia or by soliciting preclearance from the Attorney General of the United States. Id.

In August 2011, the County drafted new election maps in response to the 2010 population changes and the " one person, one vote" constitutional requirement. The

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proposed changes affected three county elections: county commissioner, constable, and justice of the peace. On August 30, after holding several public meetings and considering different plans, the County adopted two orders— one proposing new boundaries for the county commissioner election, and the other proposing new boundaries for the constable and justice of the peace elections. The county commissioner plan maintained the same number of districts (four), but reallocated voters among the districts to maintain conformity with the " one person, one vote" principle. The justice of the peace and constable plan reduced the number of constable and justice of the peace districts from eight to five.

On October 14, the County submitted its redistricting plan for the county commissioners election to the United States Department of Justice (DOJ) for preclearance. The County's plans for the constable and justice of the peace elections were submitted a few days later. The submissions contained all information required by the DOJ, including a provision that the new plans were " effective on the later of January 1, 2012, or when preclearance is obtained."

II.

On November 14, 2011, one month after the County filed for preclearance of its plan, the Plaintiffs brought this action in the federal district court alleging that the redistricting plans violated the Constitution and the Voting Rights Act. The Plaintiffs sought a declaratory judgment that the proposed maps violated the Constitution as well as Sections 2 and 5 of the Voting Rights Act, an injunction to prevent the County from using the unprecleared maps, and an injunction to preclude the County from engaging in unlawful voter registration practices. The County assured the court, as it had the DOJ, that it would not ...


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