For AG & governor, different approaches emerge in NAACP suit
The battle over Terrebonne Parish’s method of electing judges is taking two separate routes, one conciliatory, the other more combative, as the case’s two defendants — Gov. John Bel Edwards and Attorney General Jeff Landry — respond to the plan proposed by attorneys for the plaintiffs.
The responses were filed a week after the 5th Circuit U.S. Court of Appeal turned down a request by Edwards and Landry to stay the case pending its review.
A three-judge panel ruled that the appeal was too early, since the original case is still pending, and because judicial elections won’t be held in Terrebonne Parish until 2020.
After the appeal was rejected Edwards dropped representation by Landry’s deputies and a high-powered Virginia law firm with strong Republican ties at the national level, in favor of his own executive counsel, Thibodaux attorney Matthew Block.
U.S. District Judge James Brady has determined that Louisiana is in violation of the U.S. Voting Rights Act because Terrebonne elects its state judges at-large. Under the at-large scheme, all eligible voters in the parish select each of its five state judges According to Brady’s findings, that means Terrebonne’s black voters cannot elect a judicial candidate of their choice. Brady also found that the scheme was intentionally fashioned for a discriminatory purpose, thus violating the U.S. Constitution.
The decision was made following an eight-day trial in Baton Rouge, the result of a suit brought in 2014 by the Terrebonne Parish NAACP, represented by the New York-based NAACP Legal Defense and Educational Fund.
NAACP attorneys filed with Brady, as requested, a plan for correcting the violation. They support splitting Terrebonne into five judicial sub-districts, one with a majority of black voters. A like model was presented during the trial, as a means of demonstrating that a minority sub-district meeting Voting Rights Act requirements could be created.
Landry’s brief includes a lengthy and detailed response to that plan, noting that the proposed sub-district is “not compact and does not preserve political subdivisions or communities of interest,” points that are required for a plan to meet the rigors of Section 2 of the Voting Rights Act.
Court documents, including the briefs from Edwards and Landry, are in agreement that the state legislature is the appropriate place for change — if it is to be made — to occur.
Performing his first official task as Edwards’ representative in the case, Block — who had monitored proceedings up to that point — filed the executive branch response.
Neither the attorney general nor the governor, Block’s brief states, “is granted the authority by the Louisiana Constitution to create a remedy which would address the violations found by this Court.”
The governor can, the response notes, sign or veto a bill passed by the state legislature concerning voting practices.
“The Louisiana Legislature is the only body empowered by the Louisiana Constitution to consider alteration of the current structure of the 32nd Judicial District Court,” Block wrote. “It is further important to note that the Governor of the State of Louisiana is not responsible for drafting the legislation that created the 32nd Judicial District.”
Landry’s response was developed by Jason Torchinsky of Holtzman Vogel Josefiak Torchinsky, and assistant attorneys general Angelique Duhon Freel, Madeline Carbonette and Jeffrey Wale.
It echoes Block’s response on behalf of the governor. But it questions whether any legislative remedy could be consistent with state law. The response states that the Voting Rights Act does not apply or should not apply to judicial redistricting. It also presents a core argument explaining opposition to Brady’s findings, and against principles of the Voting Rights Act and its history of application in Louisiana.
“In effect, the plaintiffs’ proposed remedy would institutionalize racial segregation in judicial elections in Terrebonne Parish,” Landry’s brief states. “(Landry) believes that the state has a legitimate interest in the at-large election of judges in Terrebonne on a racially neutral basis whereby all voters in the district participate in the election of district judges who decide cases parish-wide. The defendant does not want to foster a system of judges in Terrebonne Parish with each having a discrete constituency.”
In simpler words, Landry finds the current system satisfactory from a voting rights standpoint. Although the law allows the remedy of a minority district, he does not approve.
Included with Landry’s response is a copy of documents filed in the same court where the NAACP trial took place, but containing a very different perspective.
Black voters in St. John the Baptist Parish filed a suit earlier this year seeking to have at-large voting re-established there for judicial elections, claiming a violation of the same law. The division of St. John into sub-districts, the complainants state, has had the effect on them of not having their votes count.
No judge has ruled on this matter, which is scheduled for a later judicial conference.
Landry’s brief also contains a number of highly technical objections to the NAACP proposal. While many are arguments heard and rejected by Brady, several appear to be new.
In an interview last week, Block said that with the 5th Circuit’s appeal rejection, one of two possibilities are likely.
“The court has made it very clear one of two things maybe both will happen,” Block said. “Either the legislature looks at this issue and crafts a remedy or the court is going to. So I think what our focus now needs to be is determining whether or not the legislature can craft a response to this that would address this issue.”
“We need to spend some time with the local delegation, with the Black Legislative Caucus, with the leadership in both the house and the senate, to determine whether there is something there is something that is achievable,” Block said. “We are going to be working with everybody to have these discussions.”
Members of the local delegation have indicated an understanding that resolution of the matter may fall to their respective bodies. But so far none has taken a lead role. Some have indicated that if the Black Legislative Caucus is willing to shoulder the burden — and its leadership is — then they might prefer that solution. Most also indicated knowledge that if a local bill is not supported by the local delegation it is likely to fail, if not in committee then in the full senate or house.
Block’s brief is clearly deferential to the legislature’s role, no matter who handles it.
“Further, given the importance of this issue to the people of Terrebonne Parish, and to the possible effects of this ruling outside of Terrebonne Parish, it is critically important that the Legislature be given a full opportunity to address the violations found by this Court,” Block wrote. “After such consideration, this Court will be entitled to determine whether the Legislature has been able to craft a constitutional remedy.”
Leah Aden, lead counsel for the plaintiffs, said after viewing their responses that participation by both a Louisiana governor and its attorney general in correction Voting Rights Act violations is not unprecedented.
“On several occasions, the federal district court has determined that the Governor and Attorney General have a role in the remedial process, including working with the legislature to ensure a complete remedy to the violations that the court found,” Aden said. “Defendants have served that role historically, opening judicial elections to Black voters throughout Louisiana. They cannot erase that history.”
She also was particularly critical of Landry’s filing.
“The Attorney General’s response is in large part a sad regurgitation of arguments that the district court already has rejected, including after an eight day trial and hearing from numerous witnesses,” Aden said. “And, as the main legal advisor to the Louisiana government, it is shocking that the Attorney General claims that Section 2 of the Voting Rights Act does not apply to judicial redistricting. This argument is at odds with the Supreme Court’s decision in Chisom v. Roemer, a case arising out of Louisiana that remains good law. In fact, Chisom is responsible for creating opportunities for Black voters to elect their candidates of choice at all levels of the state judiciary.” •