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Two right-wing judges seem to be trying to rig a US House race

Once again, the Supreme Court must deal with judicial arsonists on the Fifth Circuit.

Keven. McCarthy smiles, gavel in hand.
Speaker of the House Kevin McCarthy (R-CA) celebrates with the gavel after being elected as speaker in the House Chamber on January 7, 2023 in Washington, DC.
Win McNamee/Getty Images
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

Two of the most partisan judges in the country handed down an order last week that is hard to explain as anything other than an attempt to preserve Republican control of the US House of Representatives. The voting rights plaintiffs in this case, known as In re: Jeff Landry, already filed an emergency application in the Supreme Court asking the justices to lift this order.

It’s the latest effort by several of the most radical judges on the United States Court of Appeals for the Fifth Circuit, an increasingly rogue court dominated by Republican appointees, to manipulate the law in ways that benefit the Republican Party. The Supreme Court already plans to hear several cases this term where it is likely to reverse the Fifth Circuit, including a case where the Fifth Circuit declared an entire federal agency unconstitutional.

The Fifth Circuit’s order, handed down by Judges Edith Jones and James Ho, concerns a long-running lawsuit alleging that Louisiana’s congressional maps are an illegal racial gerrymander. In June 2022, a federal trial court agreed with the plaintiffs in this case, then known as Robinson v. Ardoin, and concluded that “the appropriate remedy in this context is a remedial congressional redistricting plan that includes an additional majority-Black congressional district” — one which would likely elect a Democrat to Congress.

Before that trial court’s order could take effect, however, the Supreme Court stepped in and temporarily blocked it — essentially putting the case on hold until the justices resolved a different racial gerrymandering suit, known as Allen v. Milligan, which challenged racially gerrymandered maps in Alabama. The Supreme Court ruled in June 2023 that Alabama’s maps are, indeed, illegal, and ordered that state to draw new maps that include a second Black congressional district.

Shortly thereafter, the Supreme Court lifted its hold on the Robinson litigation. Then the trial judge in that case scheduled a new hearing for Tuesday, October 3, which would have likely ended in the trial judge ordering Louisiana to either redraw its maps or accept court-drawn maps.

Now here’s the part where things take a weird turn: Last week, Jones and Ho abruptly ordered the trial judge to cancel the October 3 hearing. Their decision relies on a rarely used process known as a “writ of mandamus” which, under well-established legal rules, cannot even arguably be applied to this particular case.

This decision most likely won’t prevent the courts from ordering Louisiana to draw new maps at some point in the future, but it could delay the case long enough to leave the current, GOP-friendly maps in place during the 2024 election cycle.

Worse, Jones and Ho stepped in despite the fact that a different panel of three Fifth Circuit judges was already scheduled to hear the Robinson case on Friday, October 6 (this Friday hearing concerns whether the trial court’s June 2022 order was correctly decided). Notably, the Friday panel is significantly more moderate than Jones or Ho — it includes Judge Carolyn King, a Carter appointee, and Judge Leslie Southwick, a center-right Bush appointee who sometimes disagrees with the Fifth Circuit’s MAGA faction. (The third judge on this Friday panel, Jennifer Elrod, is a hardliner similar to Jones or Ho.)

So Jones and Ho didn’t simply issue a legally inexplicable order sabotaging a court proceeding that was likely to cost the Republican Party a seat in the US House, they also did so despite the fact that a different, more moderate panel of their own Fifth Circuit colleagues already had jurisdiction over the same case.

Writs of mandamus, briefly explained

A “writ of mandamus” is a highly unusual court order that appellate courts may hand down to block truly egregious errors by a lower court. As the Supreme Court held in Will v. United States (1967), “only exceptional circumstances amounting to a judicial ‘usurpation of power’ will justify the invocation of this extraordinary remedy.”

Indeed, the Supreme Court has warned that a writ of mandamus may issue only if the party seeking it has “no other adequate means to attain the relief he desires,” and only if that party has a “clear and indisputable” right to such extraordinary relief.

Nevertheless, Jones and Ho invoked mandamus to block one of the most routine orders that a trial judge may hand down: A decision scheduling a hearing in a long-running lawsuit that has been on that judge’s docket for more than a year.

To justify this relief, the two MAGA judges essentially accused the trial judge of rushing this case — either by not giving the state legislature enough time to attempt to redraw its maps on its own, or by not giving the state’s lawyers enough time to prepare for the October 3 hearing.

But neither of these allegations are plausible. The trial judge initially ruled in June 2022 that Louisiana’s maps are legally suspect and should be redrawn — so the state legislature has had nearly 16 months to redraw the maps if it wanted to do so. Similarly, while the Supreme Court’s decision to temporarily pause this case gave the state’s lawyers a brief reprieve from litigating it, the justices ended that pause in June 2023. So the state has known for more than three months that it needed to prepare for an eventual hearing in this case.

Moreover, even if the trial judge had actually rushed this case, that still would not justify mandamus relief. Again, a writ of mandamus may only issue if the party seeking it has “no other adequate means to attain the relief” they seek. To the extent that Louisiana believes that the trial judge erred in her initial decision concluding that the maps should be redrawn, the state can present those arguments to the more moderate panel that will hear the Robinson case on Friday. Additionally, if the state disagrees with whatever the trial judge orders it to do after the October 3 hearing, it can also appeal that decision to the Fifth Circuit.

There is, to put it simply, no justification whatsoever for Jones and Ho getting involved in this lawsuit.

So what’s really at stake in this case?

In the long term, Jones and Ho’s attempt to insert themselves into a lawsuit that they have no business hearing is unlikely to matter. If the Supreme Court invalidates their mandamus order, the October 3 hearing will proceed (possibly at a later date if the Court does not move very quickly), and the litigation will advance as it normally would through appeals courts.

Alternatively, if the Supreme Court backs Jones and Ho’s attempt to sabotage the case, Louisiana’s appeal before the King/Southwick panel will still proceed, and the trial court will most likely be able to reschedule the October 3 hearing at some future date — though that may be weeks or months from now.

It’s unclear how the Court will react to this case. Although Jones and Ho’s decision is clearly erroneous, the Supreme Court is dominated by Republican appointees. And some of the justices have expressed concerns that the Court is too willing to grant relief on its “shadow docket,” an expedited process that allows the Court to weigh into cases that have not received full briefing or oral argument. Jones and Ho’s order is currently before the justices on the shadow docket.

In any event, while the long-term implications of this case are minimal, the potential consequences for the 2024 election are enormous. The Supreme Court has held that lower court judges should not hand down decisions enjoining a state’s election laws as an election draws close — and some justices have even suggested that lower courts may not issue such injunctions as much as nine months prior to an election.

So the Robinson plaintiffs need to secure a court order imposing new maps on Louisiana soon, or there is a high risk that they will have to wait until after the 2024 election before those maps go into effect. If they do not get such a court order soon, a US House seat that should have gone to a Black Democrat will likely go to a white Republican, at least for two years.

Jones and Ho, moreover, are two of the most unapologetically partisan judges in the entire federal judiciary. Jones is a former general counsel to the Texas Republican Party, and is known for a string of cruel decisions, such as one holding that a man could be executed despite the fact that his lawyer slept through much of his trial. Ho is a kind of judicial edgelord who makes Jones look measured and reasonable by comparison.

The most likely explanation for their mandamus decision, in other words, is that Jones and Ho want the Republican Party to control the US House of Representatives. And they are willing to ignore well-established constraints on their own power in order to maximize the likelihood of a Republican Congress.