Fifth Circuit reverses holding that Louisiana’s judicial elections disenfranchise minority voters

Back in 2014, a number of groups led by the NAACP filed a federal lawsuit in Terrebonne Parish, Louisiana, alleging that the state’s “at large” system for electing judges systematically disenfranchised minority voters, in violation of the Voting Rights Act and the Fourteenth Amendment. The plaintiffs sought to replace the “at large” system with five geographic districts which, they argued, would increase the likelihood that a non-white judge would be elected.

After a lengthy pretrial process and a highly publicized bench trial, U.S. District Judge James Brady concluded in August 2017 that the “at large” system was unconstitutional, and ordered the parties to come up with an acceptable solution involving specific judicial election districts. When the parties were unable to do so, Judge Brady appointed a special master in December 2018 to draw a new district map.

Meanwhile, the defendants (essentially the State of Lousiana, through its Attorney General) appealed Judge Brady’s decision to the Fifth Circuit Court of Appeals. At the end of June, that court reversed Judge Brady, concluding that the plaintiffs had not met their burden under Thornburg v. Gingles and related Fifth Circuit precedent. Gingles requires that a party challenging an at-large voting system on behalf of a protected class of citizens demonstrate that “(1) the group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) it is politically cohesive; and (3) the white majority votes sufficiently as a bloc to enable it usually to defeat the minority’s preferred candidate.”

The Fifth Circuit found that the first element of the Gingles test may not have been met, because the evidence suggested that black voters in Terrebonne Parish were not geographically compact. The plaintiffs’ proposed new district was shaped like a horseshoe, and dissolved two-thirds of existing precincts. The court concluded that the proposed district’s “odd shape suggests that race served as the sine qua non for selecting which blocks to include in the proposed district, all in an effort to achieve the necessary demographic of 50% plus one black voting age population.” Nevertheless, the court deferred to the district court as the fact finder, and noted that the apparent lack of geographical compactness was not enough to find clear error.

The Fifth Circuit reserved its more devastating critique for the district court’s failure to give adequate weight to the state’s interest in at-large elections. This so-called linkage interest — the “interest in maintaining the link between a district judge’s jurisdiction and the area of residency of his or her voters” — was deemed to be substantial. Judge Edith Jones, writing for the court, explained:

“[T]his court examined the substantiality of [the linkage] interest at length in the en banc LULAC case. As Judge Higgenboltham explained there, ‘by making coterminous the electoral and jurisdictional bases of the trial courts,’ the State ‘advances the effectiveness of its courts by balancing the virtues of accountability with the need for independence …. A broad base diminishes the semblance of bias and favoritism towards the parochial interests of a narrow constituency.’ In contrast, subdistricting introduces the appearance of ward politics, detracting from the appearance of judicial independence. … By creating a majority-minority district, many minority voters are ‘marginalized, having virtually no impact on most district court elections.”

The Fifth Circuit went on the explain that even though there was a substantial linkage interest, Louisiana’s scheme would still be improper if plaintiffs had put forth significant evidence of vote dilution. But the court concluded that plaintiffs failed to meet their burden on that front: there was no evidence of racial appeals in previous judicial elections in Terrebonne Parish, and a limited number of qualified black judicial candidates in the same parish. Finally, the court rejected the district court’s finding of discriminatory intent on the part of the State.

The constitutional and civil rights dimensions of the opinion are obviously of great interest, but there are also a few hidden gems concerning the court’s view of the proper judicial role. The panel’s decision hinged on what it considered appropriate deference to the Louisiana legislature with respect to how it chooses to select its judges. Although federal judges might naturally chafe at the prospect of electing any jurist, in fact the federal courts (including the Supreme Court) have routinely refrained from injecting themselves into judicial selection debates. Here, too, the court avoided discussing the many problems — logistical and otherwise — with judicial elections, instead accepting at face value the state’s decision to choose its judges at the polls.

There was also an interesting partial dissent from Judge Duncan — interesting because he would have dismissed the case on the grounds that plaintiffs lacked Article III standing, The matter was technical: the plaintiffs had sued the Governor (among others), but he and the fellow defendants were not charged with adminstering judicial elections. Put differently, the court could not fashion a fair remedy since it could not order the Governor to do an act that he was legally incapable of performing. Judge Duncan explained:

“Look at it this way. The district court’s injunction barred the Governor and Attorney general from ‘administering, implementing, or conducting’ the at-large judicial elections at issue, and demanded they ‘ensure’ future elections would follow the court’s remedial plan. Had the plaintiffs ultimately won, would that injunction have likely redressed their injuries? No, because neither the Governor nor the Attorney General has authority to ‘administer, implement, or conduct’ those elections, or to ‘ensure’ how future elections will take place. The order might as well have enjoined the Secretary of the Louisiana Department of Wildlife and Fisheries. ‘For all practical purposes,’ that is, the injunction would be ‘utterly meaningless.'”

Article III standing is, of course, an issue unique to the federal courts. But by choosing federal court (instead of state court) in which to bring their claims, the plaintiffs had to meet standing requirements, and at least one judge was convinced that they had not.

The case seems destined to be appealed to the U.S. Supreme Court. We’ll continue to follow its path.