Federal court picks up Louisiana's slack in fixing racist judicial district

A years-long legal saga involving the violation of the voting rights of residents of a Louisiana community appears to be moving toward a resolution at last — no thanks to the state legislature.

A federal lawsuit brought by the NAACP Legal Defense Fund in 2014 on behalf of the Terrebonne NAACP and individual black voters against the governor and attorney general takes aim at the state court serving the parish southwest of New Orleans. In 2017, the federal court found that Louisiana violated the U.S. Constitution and the Voting Rights Act (VRA) when it intentionally diluted the voting power of Terrebonne's black voters by using at-large voting to elect the five judges of the state's 32nd Judicial District Court (JDC).

Terrebonne's population is 71 percent white, 19 percent black, 6 percent American Indian, and 5 percent Hispanic or Latino, making it difficult for non-white residents to elect a candidate countywide to represent them, given how voting there is polarized along racial lines. Since the Louisiana legislature created the 32nd JDC in 1968 and the parish opted for at-large voting, no black candidate who's faced electoral opposition has served on the court. However, an incumbent white judge, Timothy Ellender, was re-elected even after he was sanctioned for appearing in public wearing blackface, an afro wig, and an orange prison jumpsuit. To fix the problem, the plaintiffs are seeking the creation of five single-member districts for the court's judges, including one with a majority of non-white voters.

"Congress has banned at-large voting for all federal elections," notes the voter engagement group Nonprofit VOTE. "It's been discarded by most states. No voting method has been subject to more litigation for its discriminatory impact on local elections. Yet, while the covers are off the discriminatory impact and intent of at-large voting, it persists in hundreds of local jurisdictions."

As early as 1969, four years after Congress passed the VRA, the U.S. Supreme Court held that at-large election schemes were subject to challenge under the law because of their potential to dilute minority voting strength. From the 1980s to the early 1990s, lawsuits targeted the use of statewide elections for judges in a dozen states; in recent years, lawsuits have also challenged at-large statewide judicial elections on race discrimination grounds in Alabama and Texas.

Louisiana is among the places where statewide judicial elections were challenged as racially discriminatory. Two cases brought under the VRA — 1991's U.S. Supreme Court-decided Chisom v. Roemer and Clark v. Edwards, which went to the 5th U.S. Circuit Court of Appeals in 1992 — led to the creation of majority-minority districts and empowered black voters to elect their preferred candidates to Louisiana's judiciary. In 1994, those voters put Bernette Johnson, a former district court judge, on Louisiana's high court, and in 2013 she became the state's first black chief justice.

But that same year, the U.S. Supreme Court in its landmark Shelby County v. Holder decision struck down the VRA's preclearance provision requiring federal authorities to OK election changes in places with a history of voting discrimination, and some local jurisdictions have since moved to at-large elections. That same year, for example, the Texas city of Pasadena, a Houston suburb, redistricted its eight city council districts into six districts and two at-large seats, a move that the federal courts eventually found illegally diluted the power of Hispanic voters.

In his 2017 decision in the Terrebonne case, U.S. District Court Judge James Brady ruled that at-large voting for the 32nd JDC deprives black voters of the equal opportunity to elect candidates of their choice in violation of the Constitution and the VRA's Section 2, which bars discrimination in voting because of race, color or language minority status. Gov. John Bel Edwards (D) and Attorney General Jeff Landry (R) appealed the ruling, with Landry's office hiring a Virginia law firm with a controversial record on voting rights to help with the case, but the 5th U.S. Circuit Court of Appeals rejected their request.

Brady gave the Louisiana legislature the first shot at fixing the illegal district, a plan continued after he died in December 2017 and was replaced by a new presiding judge, Shelly Dick. Last April, Louisiana state Rep. Randal Gaines (D), chair of the Black Legislative Caucus, introduced House Bill 861 to remedy the violations. However, no member of Terrebonne's all-white, all-Republican legislative delegation — Reps. Beryl Amedée, Tanner Magee, and Jerome Zeringue, and Sens. Bret Allain and Norby Chabert — supported the bill or introduced an alternative.

On April 25, 2018, the state House and Governmental Affairs Committee considered Gaines' bill, and supporters testified for more than 90 minutes. But in the end, members voted against the proposal by 5-3 — the seventh time in over two decades that the Louisiana legislature rejected a bill seeking to change the electoral method for the 32nd JDC by creating a majority-minority subdistrict. At the time, Leah Aden, an attorney for the NAACP Legal Defense and Education Fund, which represents the plaintiffs, called the legislature's move "a sheer act of defiance."

"We sought an alternative that was endorsed by the court and even that is not enough to get enough people to represent the interests of Terrebonne's black citizens," she said at the time. "We are grateful to Rep. Gaines for doing what no member of the local delegation was willing to do, which was to represent Terrebonne's black citizens."

Last August, the federal court said that it would come up with a remedy since lawmakers failed to do so. Earlier this month, it appointed a technical advisor known as a "special master" to help it determine a remedial redistricting plan, picking from a slate of candidates submitted by the parties to the lawsuit. The judge chose David R. Ely, president and founder of Compass Demographics in San Gabriel, California. "Mr. Ely has extensive experience addressing issues like those presented herein, and there is no suggestion that Mr. Ely would investigate the appropriate remedy in this matter in a partisan manner," Dick said in the order.

The next session of the Louisiana legislature starts on April 8 and runs through June 6. The judge ordered Ely to submit his report and recommendations to the court by April 22 and will give the parties to the lawsuit a chance to respond. If the legislature again fails to take action to fix the unconstitutional 32nd JDC, the court expects to enter an order on the proposed remedy by the session's end.

"Plaintiffs, individual Black voters in Terrebonne and the Terrebonne NAACP urgently seek a resolution of this case in advance of the next regularly scheduled elections for all five members of the 32nd JDC in 2020," Aden said in an email to Facing South.