Seven elected officials in Galveston County and a Galveston citizen were not prevailing parties in a voting right case, so not entitled to attorney fees, a three judge panel of the Fifth U.S. Circuit Court of Appeals decided on Dec. 17.

The district judge who presided over the voting rights litigation had awarded them attorney fees, an award opposed by Galveston County.

“We hold that the Plaintiffs are not prevailing parties because the injunctive relief the Plaintiffs achieved was not material to the outcome of this case, and, alternatively, nor did this relief directly or materially benefit the Plaintiffs,” Judge E. Grady Jolly wrote in the opinion joined by judges Harold DeMoss Jr. and Leslie Southwick.

The Fifth Circuit reversed the judgment of the district court and remanded the case for entry of judgment for Galveston County.

Joe Nixon, who argued the appeal for Galveston County, said the Dec. 17 opinion “nails down the definition of prevailing party.”

“It creates a hard litmus test. No longer is there really going to be an issue of what is a technical victory that might subject a jurisdiction that might have to pay legal fees to the other side,” Nixon, a partner in Beirne, Maynard & Parsons in Houston, said.

“Quite frankly it removes the cloud of expense from jurisdictions who might otherwise want to adopt some policy reason for altering election laws or jurisdictional laws of some kind,” Nixon said.

However, Jose Garza of San Antonio, who represents two of the plaintiffs and argued before the panel, said the decision is “a lot disappointing.”

“Over the last 10 years or so, the courts have really rolled back when you can recover attorney fees when you file one of these cases. This is kind of incremental erosion for the ability to recover fees in voting rights cases that really could have a negative impact on private attorneys doing these cases,” he said.

Garza said he and his co-counsel and their clients will discuss the decision, and decide whether to seek cert before the U.S. Supreme Court.

He said the plaintiffs were awarded close to $200,000 in attorney fees.

Chad Dunn, a partner in Brazil & Dunn in Houston, who also argued for the plaintiffs during oral argument on Sept. 6, did not return a telephone message.

In November 2011, a month after Galveston County filed for pre-clearance of its redistricting plan with the U.S. Department of Justice, the plaintiffs filed The Honorable Terry Petteway v. The Honorable Mark Henry in federal court in Galveston alleging that redistricting plan violated the U.S. Constitution and the Voting Rights Act. In that suit, the district judge signed a temporary restraining order preventing the county from using the “unprecleared” maps.

Ultimately, Jolly wrote, the county and the DOJ negotiated a new pre-cleared set of maps, and a three-judge panel of federal judges entered a final order directing that the 2012 election be held under those maps, and permanently enjoining the county from implementing any plans for the 2012 election that were not pre-cleared.

The plaintiffs sought attorney fees on the ground the suit led to postponing elections until Galveston County got pre-clearance for its plans. They also alleged their advocacy before the DOJ led to the county’s initial plans being rejected. Galveston County opposed the fees on the ground the plaintiffs were not prevailing parties.

The district judge entered an order awarding the fees, and the county appealed it.

The Fifth Circuit panel found that the injunction postponing activities for an election under a pre-cleared map cannot be characterized as a “material legal success” so the plaintiffs failed to meet the test of prevailing parties under Buckhannon Bd. & Care Home Inc. v. West Virginia Dep’t of Health & Human Resources, a 2001 U.S. Supreme Court decision.

“By failing to provide any evidentiary support that the injunction prevented an illegal election—or otherwise benefited the Plaintiffs—the Plaintiffs have failed to meet their burden of demonstrating that they are prevailing parties,” Jolly wrote.

He also wrote that the plaintiffs cannot prove they are prevailing parties simply based on the DOJ’s objection to the initial proposed maps.

“In the absence of evidence to the contrary, we must assume that whatever aspects of the proposed maps the DOJ found objectionable under the Act would have been treated similarly by the DOJ without the intervention of the Plaintiffs,” Jolly wrote in the 13-page opinion.