CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 9/4/2023 1

Imminent Elections 

for a Districting Plan Not Yet Precleared 

Petteway v. Galveston (Kenneth M. Hoyt, Emilio M. Garza, 

and Melinda Harmon, S.D. Tex. 3:11-cv-511) 

A federal complaint sought to enjoin the use of new county-commission district lines until the new lines could be precleared pursuant to 

section 5 of the Voting Rights Act. The district judge assigned the 

case issued a temporary restraining order, but the other two judges 

of a three-judge district court empaneled to hear the section 5 claim 

determined that the injunction was unnecessary while preclearance 

procedures were pending. Preclearance required adjustments to the 

new districting plan, and the court ordered adjustments to the election calendar to accommodate the late-drawn district lines. The district judge assigned the case awarded attorney fees and costs to the 

plaintiffs, but the court of appeals determined that they were not prevailing parties in the litigation because the injunction did not have 

an impact on the preclearance process. 

Subject: District lines. Topics: Section 5 preclearance; 

malapportionment; three-judge court; enjoining elections; attorney 

fees; intervention. 

County incumbents filed a federal complaint on November 14, 2011, alleging 

that new district lines for their offices drawn after the 2010 census and to be 

used in 2012 elections violated the U.S. Constitution and the Voting Rights 

Act.1 In addition to a voter, the plaintiffs included two county commissioners, 

two justices of the peace, and three constables.2

 With the complaint, the plaintiffs filed an application for a temporary restraining order and a preliminary 

injunction3

 and an application for a three-judge district court to hear a challenge to the new districts as not precleared pursuant to section 5 of the Voting 

Rights Act.4

The new district lines retained four precincts for the county commission 

and reduced the number of precincts for constables and justices of the peace 

from eight to five.5 The county’s litigation position was that preclearance was 

pending and the new lines would not be used until they had been precleared.6

1. Complaint, Petteway v. Galveston, No. 3:11-cv-511 (S.D. Tex. Nov. 14, 2011), D.E. 1; 

Petteway v. Henry, 738 F.3d 132, 135 (5th Cir. 2013); see Harvey Rice, Suit Claims Galveston 

County Redistricting Illegal, Hous. Chron., Nov. 17, 2011, at 2. 

2. Complaint, supra note 1, at 8–10. 

3. Application, Petteway, No. 3:11-cv-511 (S.D. Tex. Nov. 14, 2011), D.E. 2; see Pub. L. No. 

89-110, § 5, 79 Stat. 437, 439, as amended, 52 U.S.C. § 10304 (requiring preclearance of 

changes to voting procedures in jurisdictions with a certified history of discrimination and 

requiring that preclearance disputes be heard by a three-judge district court). 

4. Application, Petteway, No. 3:11-cv-511 (S.D. Tex. Nov. 14, 2011), D.E. 3. 

5. Petteway, 738 F.3d at 135. 

6. Id.
Imminent Elections for a Districting Plan Not Yet Precleared 

2 Federal Judicial Center 9/4/2023 

Preclearance was sought on October 14, and the Justice Department’s response was due on December 13.7

 The scheduled candidacy filing period for 

March 6 primary elections was November 28 to December 15.8

The court set the case for hearing before Judge Kenneth M. Hoyt on November 21.9

 Because the preclearance process was underway, Judge Hoyt denied the application for a three-judge court,10 but Judge Hoyt issued an order 

enjoining the use of district lines before they had been precleared.11

On November 22, Judge Hoyt decided that a three-judge court was necessary after all12 and set another hearing for November 30.13 The circuit’s chief 

judge appointed Circuit Judge Emilio M. Garza14 and District Judge Melinda 

Harmon, Southern District of Texas, to join Judge Hoyt on the three-judge 

court.15 On November 23, Judge Hoyt ordered briefing on “the constitutional 

permissibility of permitting the current, uncleared plan to be implemented 

versus conducting an election under the old Commissioners’ Court map.”16

The defendants’ brief explained that if new precinct lines for justices of the 

peace and constables were not precleared in time, old lines could be used, because precinct boundaries were properly set more to reflect caseload than to 

reflect population.17 For the county commission, the plaintiffs proposed a districting plan for the court to adopt while preclearance of the county’s plan was 

pending.18 Three other voters moved to intervene so that they could propose 

an alternative plan,19 and the court granted intervention.20 The court denied21

a motion22 by the intervenors to delay the litigation. 

Judge Hoyt heard the case on November 30 and December 1, with Judges 

Harmon and Garza’s chambers listening by telephone.23 On December 9, the 

7. Id.; see Transcript at 18, Petteway, No. 3:11-cv-511 (S.D. Tex. Nov. 30, 2011, filed Dec. 

5, 2011), D.E. 29 [hereinafter Nov. 30, 2011, Transcript].

8. Transcript at 21–25, Petteway, No. 3:11-cv-511 (S.D. Tex. Nov. 21, 2011, filed Sept. 25, 

2012), D.E. 96; Nov. 30, 2011, Transcript, supra note 7, at 25–26. 

9. Notice, Petteway, No. 3:11-cv-511 (S.D. Tex. Nov. 15, 2011), D.E. 4; Docket Sheet, id.

(Nov. 14, 2011). 

10. Order, id. (Nov. 21, 2011), D.E. 10. 

11. Order, id. (Nov. 21, 2011), D.E. 11; Clarification Order, id. (Nov. 23, 2011), D.E. 16; 

see Harvey Rice, Panel to Reconsider Voting Districts, Hous. Chron., Nov. 24, 2011, at 3. 

12. Order, Petteway, No. 3:11-cv-511 (S.D. Tex. Nov. 22, 2011), D.E. 14. 

13. Order, id. (Nov. 22, 2011), D.E. 13. 

14. Judge Garza retired on January 5, 2015. Federal Judicial Center Biographical Directory 

of Article III Federal Judges, www.fjc.gov/history/judges. 

15. Order, Petteway, No. 3:11-cv-511 (S.D. Tex. Nov. 29, 2011), D.E. 19. 

16. Order, id. (Nov. 23, 2011), D.E. 15. 

17. Defendants’ Brief at 4, id. (Nov. 28, 2011), D.E. 18; see Petteway v. Henry, 738 F.3d 132, 

136 n.2 (5th Cir. 2013). 

18. Plaintiffs’ Brief, Petteway, No. 3:11-cv-511 (S.D. Tex. Nov. 28, 2011), D.E. 17. 

19. Intervention Motion, id. (Nov. 30, 2011), D.E. 21. 

20. Nov. 30, 2011, Transcript, supra note 7, at 11. 

21. Id. at 11, 33. 

22. Continuance Motion, Petteway, No. 3:11-cv-511 (S.D. Tex. Nov. 30, 2011), D.E. 22. 

23. Transcript, id. (Dec. 1, 2011, filed Dec. 5, 2011), D.E. 30; Nov. 30, 2011, Transcript, 

supra note 7. 
Imminent Elections for a Districting Plan Not Yet Precleared 

Federal Judicial Center 9/4/2023 3

court vacated the temporary restraining order and ruled that no remedy was 

necessary in advance of the December 13 deadline for preclearance response.24

Judge Hoyt dissented and would have adopted the plaintiffs’ interim commission plan.25 Following a December 12 advisory by the plaintiffs that the Justice 

Department understood the preclearance deadline to be December 19, the 

court modified its order to postpone consideration of a remedy until December 19.26

On December 20, the court ordered briefing by the following day on the 

status of the case.27 The plans were not precleared; on December 19, the Justice 

Department asked for additional information.28 On January 20, 2012, the court 

agreed to enjoin use of unprecleared plans but declined to yet adopt interim 

substitute plans.29

The Justice Department found all of the plans retrogressive.30 Following a 

March 23, 2012, hearing on the status of the case,31 the court issued that day 

an order approving a negotiated substitute plan for the county commission 

and the use of the 2001 precinct lines for the constables and the justices of the 

peace.32 The court ordered adjustments to the primary-election calendar to accommodate the late adoption of the new district lines.33

On May 22, Judge Hoyt awarded the plaintiffs $254,790.28 in attorney fees 

and costs.34 The court of appeals, however, ruled on December 17, 2013, that 

the plaintiffs were not prevailing parties, because “the injunction had no effect 

on the implementation of the electoral map.”35

24. Opinion, Petteway, No. 3:11-cv-511 (S.D. Tex. Dec. 9, 2011), D.E. 32, 2011 WL 

6148674. 

25. Id. at 6–22. 

26. Amended Opinion, id. (Dec. 12, 2011), D.E. 34; see Advisory, id. (Dec. 12, 2011), D.E. 

33. 

27. Order, id. (Dec. 20, 2011), D.E. 35. 

28. Ex. 1, Defendants’ Brief, id. (Dec. 21, 2011), D.E. 36; Petteway v. Henry, 738 F.3d 132, 

135 (5th Cir. 2013). 

29. Order, Petteway, No. 3:11-cv-511 (S.D. Tex. Jan. 20, 2012), D.E. 45; Petteway, 738 F.3d 

at 135. 

30. Petteway, 738 F.3d at 136; see Harvey Rice, Feds Say New Map Dilutes Minority Vote, 

Hous. Chron., Mar. 7, 2012, at 2. 

31. Transcript, Petteway, No. 3:11-cv-511 (S.D. Tex. Mar. 23, 2012, filed Sept. 15, 2012), 

D.E. 94 (Judge Garza, presiding). 

32. Order, id. (Mar. 23, 2012), D.E. 69 [hereinafter Mar. 23, 2012, Order]; Petteway, 738 

F.3d at 136. 

33. Mar. 23, 2012, Order, supra note 32. 

34. Order, Petteway, No. 3:11-cv-511 (S.D. Tex. May 22, 2012), D.E. 80 ($143,437.92 for 

the county commissioners); Order, id. (May 22, 2012), D.E. 79 ($111,332.36 for the other 

plaintiffs); see Petteway, 738 F.3d at 136; Order, Petteway, No. 3:11-cv-511 (S.D. Tex. July 10, 

2012), D.E. 86 (denying reconsideration). 

35. Petteway, 738 F.3d 132, cert. denied, 573 U.S. 931 (2014).