Fusilier v. Landry Brief for Plaintiffs-Appellees
Public Court Documents
November 14, 2019
Cite this item
-
Brief Collection, LDF Court Filings. Fusilier v. Landry Brief for Plaintiffs-Appellees, 2019. 32520b97-b29a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/35b5eb61-df82-4617-b842-1ac317de80c3/fusilier-v-landry-brief-for-plaintiffs-appellees. Accessed May 17, 2025.
Copied!
United States (Court of Appeals
fo r the
IFiftlj Circuit
Case No. 19-30665
VINCENT FUSILIER, SR., Reverend; LIONEL MYERS;
WENDELL DESM OND SHELBY, JR.; DANIEL TURNER,
TERREBONNE PARISH BRANCH NAACP,
Plaintiffs-Appellees,
v.
JEFFREY MARTIN LANDRY, Esq., Attorney General
for the State o f Louisiana, in his official capacity,
Defendant-Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF LOUISIANA, BATON ROUGE
BRIEF FOR PLAINTIFFS-APPELLEES
Leah C. Aden
Janai S. Nelson
Samuel Spital
NAACP Legal Defense
& Educational Fund, Inc.
40 Rector Street, 5th Floor
N ew York, N ew York 10006
(212) 965-2200
laden@naacpldf.org
- and -
Michaele Turnage Young
NAACP Legal Defense
& Educational Fund, Inc.
700 14th Street N .W ., Suite 600
Washington, DC 20005
(202) 682-1300
mturnageyoung@naacpldf.org
Ronald Lawrence Wilson
701 Poydras Street
One Shell Square
N ew Orleans, Louisiana 70139
(504) 525-4361
cabral2@aol.com
- and -
Michael B. de Leeuw
William Aaron Lesser
Cozen O’Connor
45 Broadway, Suite 1600
N ew York, N ew York 10006
(212) 509-9400
m deleeuw@ cozen.com
wlesser@ cozen.com
Attorneys fo r Plaintiffs-Appellees
mailto:laden@naacpldf.org
mailto:mturnageyoung@naacpldf.org
mailto:cabral2@aol.com
mailto:mdeleeuw@cozen.com
mailto:wlesser@cozen.com
CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies that the following listed persons
and entities as described in the fourth sentence of Rule 28.2.1 have an interest in
the outcome of this case. These representations are made in order that the judges of
this court may evaluate possible disqualification or recusal.
Private Plaintiffs-Appellees Former or Current Counsel
• Terrebonne Parish Branch
NAACP
• Rev. Vincent Fusilier, Sr.
• Lionel Myers
• Daniel Turner
• Wendell Desmond Shelby Jr.
• Leah C. Aden
• Cozen O ’Connor
• Michael de Leeuw
• Ryan P. Haygood
• Natasha M. Korgaonkar
• William Lesser
• Danielle Morello
• Janai S. Nelson
• NAACP Legal Defense &
Educational Fund, Inc.
• Deuel Ross
• Alexander Selamick
• Samuel Spital
• Michaele N. Tumage Young
• Ronald L. Wilson
• Victorien Wu
Former or Current
Defendant-Appellant
Former or Current Counsel
• Jeffrey Martin Landry, in his
official capacity as the Attorney
General of the State of Louisiana
• James D. Caldwell, in his
official capacity as the Attorney
General of the State of Louisiana
• William P. Bryan, III
• Madeline S. Carbonette
• Angelique Duhon Freel
• Phillip M. Gordon
• Holtzman Vogel Josefiak
Torchinsky PLLC
• LaToya Danielle Jordan
• Louisiana Department of Justice
1
• Suzanne Quinlan Mooney
• Elizabeth Murrill
• Office of the Attorney General
of the State of Louisiana
• Theresa Cassidy Phillips
• Jessica Marie Podewils
Thornhill
• Dennis W. Polio
• Jason Brett Torchinsky
• Jeffrey M. Wale
• Patricia Hill Wilton
Former or Current Defendant Former or Current Counsel
at District Court
• John Bel Edwards, in his official
capacity as the Governor of the
State of Louisiana
• Piyush “Bobby” Jindal, in his
official capacity as the Governor
of the State of Louisiana
• Matthew Block
• Office of the Governor of the
State of Louisiana
• Tom Schedler, in his official
capacity as the Louisiana
Secretary of State
• Celia R. Cangelosi
• Carey T. Jones
Proposed Defendant Intervenor
at District Court
Former or Current Counsel
• Terrebonne Parish Consolidated
Government
• Julius P. Hebert, Jr.
Is/ Leah C. Aden
Counsel fo r Plaintiffs-Appellees Terrebonne
Parish Branch NAA CP, et al.
11
ORAL ARGUMENT
The Court’s order of October 21, 2019 provides for this case to be heard for
oral argument during the week of January 6, 2020. Plaintiffs-Appellees agree that
this fact-intensive case warrants oral argument.
in
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES..........................................................................................vi
INTRODUCTION.............................................................................................................1
COUNTER-STATEMENT OF JURISDICTION.........................................................3
COUNTER-STATEMENT OF ISSUES........................................................................3
STANDARD OF REVIEW ............................................................................................. 4
COUNTER-STATEMENT OF FACTS AND PROCEDURAL HISTORY.............5
A. Liability Phase............................................................................................. 5
B. Remedial Phase......................................................................................... 10
SUMMARY OF THE ARGUMENT........................................................................... 12
ARGUMENT................................................................................................................... 17
I. THERE IS SUBJECT MATTER JURISDICTION.............................. 17
A. The AG’s Arguments About “Traceability” and “Lack
of Redressability” Lack Merit.......................................................17
B. The Ex parte Young Exception Allows Appellees’
Constitutional Claims.................................................................... 24
II. THE DISTRICT COURT’S FACTUAL FINDING THAT
AT-LARGE VOTING HAS DISCRIMINATORY RESULTS
SHOULD BE AFFIRMED..................................................................... 25
A. The Record Amply Supports the District Court’s
Finding that Plaintiffs Satisfied Gingles O ne.............................26
1. Numerosity...........................................................................26
2. Compactness o f Terrebonne’s Black Population........... 27
3. The A G ’s Racial Gerrymandering Analysis in
Assessing Gingles One is Misplaced................................32
IV
B. The District Court Correctly Found that Plaintiffs
Satisfied Gingles Two and Three................................................. 35
1. RPV .......................................................................................35
2. Special Circumstances....................................................... 39
C. The District Court Correctly Concluded that Plaintiffs
Demonstrated Under the Totality of Circumstances that
Vote Dilution Exists in 32nd_JDC Elections............................ 41
D. The District Court Gave Serious Consideration to
Louisiana’s “Linkage” Interest.................................................... 45
III. THE DISTRICT COURT’S DISCRIMINATORY INTENT
FINDING SHOULD BE AFFIRMED UNDER RULE 5 2 .................50
A. The AG’s Complaints About the Evidence Do Not
Show Clear E rror...........................................................................50
B. The District Court Applied the Correct Legal Standards.........56
IV. THE DISTRICT COURT’S REMEDY WAS
APPROPRIATE AND SHOULD BE AFFIRMED..............................56
A. The District Court’s Remedial Order Was Sound,
Supported, and Within its Equitable Discretion........................ 56
V. THE TENTH AMENDMENT DOES NOT RELIEVE
LOUISIANA OF COMPLIANCE WITH THE VRA AND
CONSTITUTION......................................................................................62
VI. CONCLUSION.........................................................................................63
v
Page(s)
Cases:
Abbott v. Perez,
138 S. Ct. 2305 (2018)................................................................................................ 56
African-American Citizens fo r Change v. Robbins,
825 F. Supp. 885 (E.D. Mo. 1993)........................................................................... 19
Air Evac EMS, Inc.,
851 F.3d 507 (5th Cir. 2017).....................................................................................18
Bartlett v. Strickland,
556 U.S. 1 (2009).........................................................................................................27
Boyd v. Nebraska ex rel. Thayer,
143 U.S. 135 (1892).................................................................................................... 63
Brown v. Thomson,
462 U.S. 835 (1983)................................................................................................... 58
Bursztajn v. United States,
367 F.3d 485 (5th Cir. 2004)....................................................................................... 4
Campbell v. Edwards,
No. CV 17-1261-JWD-EWD (M.D. La. Mar. 20, 2018), ECF No. 3 5 ................ 21
Chisom v. Edwards,
690 F. Supp. 1524 (E.D. La. 1988)........................................................................... 19
Chisom v. Jindal,
890 F. Supp. 2d 696 (E.D. La. 2012)........................................................................ 23
Chisom v. Roemer,
501 U.S. 380 (1991)................................................................................................... 18
Citizens fo r a Better Gretna v. City o f Gretna, La.,
636 F. Supp. 1113 (E.D. La. 1986), a ffd , 834 F.2d 496 (5th Cir. 1987).............23
Clark v. Calhoun Cty.,
88 F.3d 1393 (5th Cir. 1996)............................................................................. 32, 61
Clark v. Calhoun Cty.,
21 F.3d 92 (5th Cir. 1994)..................................................................................25, 29
TABLE OF AUTHORITIES
vi
Clark v. Edwards,
725 F. Supp. 285 (M.D. La. 1988)................................................................ 6, 19, 48
Clark v. Roemer,
111 F. Supp. 471 (M.D. La. 1991)............................................................................ 19
Cleveland ex rel. Cleveland v. United States,
457 F.3d 397 (5th Cir. 2006)....................................................................................... 5
Cousin v. Sundquist,
145 F.3d 818 (6th Cir. 1998).....................................................................................63
Davis v. Chiles,
139 F.3d 1414 (11th Cir. 1998)......................................................................... 32, 57
Doe v. Jindal,
2011 WL 3664496 (M.D. La. 2011)......................................................................... 25
Doe v. Jindal,
2011 WL 3925042 (E.D. La. 2011).......................................................................... 25
Ex parte Young,
209 U.S. 123 (1908)........................................................................................ 3, 17, 24
Fairley v. Hattiesburg, Miss.,
584 F.3d 660 (5th Cir. 2009)....................................................................................... 5
Georgia v. Ashcroft,
539 U.S. 461 (2003)....................................................................................................57
Gregory v. Ashcroft,
501 U.S. 452(1991)................................................................................................... 63
Hall v. Louisiana,
974 F. Supp. 2d 944 (M.D. La. 2013)....................................................................... 51
Hall v. Louisiana,
983 F. Supp. 2d 820 (M.D. La. 2013)....................................................................... 18
Houston v. Lafayette Cty. Miss.,
56 F.3d 606 (5th Cir. 1995)......................................................................... 28, 29, 33
Hous. Lawyers ’ Ass ’n,
501 U.S. 419(1991............................................................................................. 45, 63
June Med. Servs v. Caldwell,
2014 WL 4296679 (M.D. La. 2014)........................................................................ 25
vii
K.P. v. LeBlanc,
627 F.3d 115 (5th Cir. 2010)............................................................................. 22, 24
King v. Louisiana ex rel. Jindal,
2013 WL 5673584 (E.D. La. 2013).......................................................................... 25
King v. State Bd. o f Elections,
979 F. Supp. 619 (N.D. 111. 1997)...................................................................... 61, 62
League o f United Latin Am. Citizens v. Perry,
548 U.S. 399 (2006)............................................................................................ 32, 42
League o f United Latin Am. Citizens, Council No. 4434 v. Clements,
999 F.2d 831 (5th Cir. 1993).................................................................45, 47, 49, 63
Lujan v. Defenders o f Wildlife,
504 U.S. 555 (1992)....................................................................................................23
Matter o f Complaint o f Luhr Bros., Inc.,
157 F.3d 333 (5th Cir. 1998)....................................................................................... 4
McMillan v. Escambia Cty.,
748 F.2d 1037 (5th Cir. 1984).............................................................. 35, 42, 43, 50
Milwaukee Branch ofNAACP v. Thompson,
116 F.3d 1194 (7th Cir. 1997)...................................................................................62
Monsanto Co. v. Geertson Seed Farms,
561 U.S. 139(2010)............................................................................................ 18, 20
Ne. Ohio Coal, fo r the Homeless v. Husted,
837 F.3d 612 (6th Cir. 2016).....................................................................................51
Nipper v. Smith,
39 F.3d 1494 (11th Cir. 1994)...................................................................................62
North Carolina v. Covington,
138 S. Ct. 2548 (2018)................................................................................................62
OCA-Greater Houston v. Texas,
867 F.3d 604 (5th Cir. 2017).....................................................................................24
Okpalobi v. Foster,
244 F.3d 405 (5th Cir. 2001).....................................................................................22
Prejean v. Foster, 227 F.3d 504 (5th Cir. 2000) .......................................................47
viii
Prejean v. Foster,
83 F. App’x 5 (5th Cir. 2003)....................................................................................18
Price v. Pierce,
823 F.2d 1114 (7th Cir. 1987)...................................................................................20
Quern v. Jordan,
440 U.S. 332(1979).................................................................................................... 24
Robicheaux v. Caldwell,
986 F. Supp. 2d 749 (E.D. La. 2013)........................................................................ 24
Rodriguez v. Harris Cty., Tex.,
964 F. Supp. 2d 686 (S.D. Tex. 2013)......................................................................27
Rogers v. Lodge,
458 U.S. 613 (1982).......................................................................................................4
Taylor v. Beckham,
178 U.S. 548 (1900).....................................................................................................63
Teague v. Attala Cty.,
92 F.3d 283 (5th Cir. 1996)........................................................................................25
Theriot v. Parish o f Jefferson,
966 F. Supp. 1435 (E.D. La. 1997)........................................................................... 23
Thornburg v. Gingles,
478 U.S. 30(1986)..................................................................................... 4 ,35 ,39 ,41
United States v. Brown,
561 F.3d 420 (5th Cir. 2009)....................................................................................... 5
Utah v. Evans,
536 U.S. 452 (2002).................................................................................................... 23
Va. Off. fo r Prot. & Advoc. v. Stewart,
563 U.S. 247 (2011).................................................................................................... 24
Valdespino v. Alamo Heights Ind. Sch. Dist.,
168 F.3d 848 (5th Cir. 1999)..................................................................................... 27
Village o f Arlington Heights v. Met. Housing Dev. Corp,
429 U.S. 252 (1977)............................................................................................. 50,55
Wyche v. Madison Par. Police Jury,
635 F.2d 1151 (5th Cir. 1981)........................................................................... 57, 62
IX
Statutes & Other Authorities:
4U.S.C. § 101................................................................................................................ 20
28 U.S.C. § 1291.............................................................................................................. 3
28 U.S.C. § 1331.............................................................................................................. 3
28 U.S.C. § 1343.............................................................................................................. 3
28 U.S.C. § 1357.............................................................................................................. 3
28 U.S.C. §2201............................................................................................................... 3
28 U.S.C. §2202............................................................................................................... 3
42 U.S.C. § 1983.............................................................................................................. 3
42 U.S.C. § 1988.............................................................................................................. 3
52 U.S.C. § 10301............................................................................................................ 3
52 U.S.C. § 10308............................................................................................................ 3
Fed. R. Civ. P. 52 ..............................................................................................................4
La . Att’y Gen.’s Op . 02-189,2002 WL 1483936 (2002)........................................21
La . Att’y Gen.’s Op . 00-274,2000 WL 1132731 (2000)........................................21
La . Att’y Gen.’s Op. 99-30, 1999 WL 372514 (1999)............................................. 21
La . Const, art. IV, § 5(A )........................................................................................... 20
La . Const, art. IV, § 8 ..................................................................................................20
La . Const, art. V, § 9 .................................................................................................... 47
La . Const, art. V, § 4 .................................................................................................... 47
La . Const, art. V, § 9 .................................................................................................... 47
La . Const, art. V, § 14.................................................................................................. 46
La . Const, art. V, § 15(A).....................................................................................46, 47
La . Const, art. V, § 22(B)............................................................................................20
La . Rev. Stat. Ann. § 13:621.16................................................................................ 6
La . Rev. Stat. Ann . § 18:513(A)(5)........................................................................20
x
La . Rev. Stat. Ann . § 18:513(B)............................................................................... 20
L a . R e v . S t a t . A n n . § 18:621(A)............................................................................... 20
L a . R e v . S t a t . A n n . § 42:141..................................................................................... 20
L a . R e v . S t a t . A n n . § 49:211..................................................................................... 20
L a . R e v . S t a t . A n n . § 49:251..................................................................................... 21
xi
INTRODUCTION
After an 8-day trial, the district court issued a 91-page opinion with detailed
factual findings, holding that the use and maintenance of at-large voting for the 32nd
Judicial District Court (“32nd JDC”) has discriminatory results and
a discriminatory purpose. The court applied the correct legal standards, and its
factual findings are unassailable. After providing the Louisiana Legislature ample
opportunity to remedy these violations, the court appointed a special master and
issued a remedy based on findings and his recommendation.
This is a straightforward challenge to the 32nd_JDC’s electoral method,
which has denied Black voters the opportunity to elect their candidates of choice.
Prior to this lawsuit, Plaintiffs and others fought for 20 years to create a majority-
Black subdistrict (“opportunity subdistrict”) to provide Black voters fair electoral
opportunity. Their persistent advocacy was overwhelmed by staunch opposition by
white officials, partly based on reasons the district court found tenuous and
pretextual. The court’s rulings establish a remedial opportunity subdistrict in
compliance with Section 2 of the Voting Rights Act (“Section 2” or §2”) and the
U.S. Constitution.
While the Governor has not appealed, the Attorney General (“AG”) argues
the court’s remedy is exceptional in Louisiana. It is not. The Louisiana Constitution
requires the use of districts for state Supreme Court and intermediate appellate court
1
elections. District-based elections also are commonplace for trial-level courts due to
Clark v. Edwards/Roemer—and also voluntary legislative action since Clark.
The AG argument that neither he nor the Governor are proper defendants is
wrong. Louisiana’s Governor and AG routinely have been sued in federal court for
similar remedies and enjoined because of their roles in redistricting and elections
and ability to afford plaintiffs’ redress.
On the merits, the court’s detailed findings make clear that Plaintiffs
established vote dilution. The AG cannot come close to demonstrating clear error
with the court’s findings that Plaintiffs satisfied the Gingles requirements and the
totality of circumstances weigh in their favor.
The court’s remedial plan is based on traditional redistricting principles
(“TRPs”), and creates an opportunity subdistrict that is compact, and connects areas
of Terrebonne already combined in districts that elect members of local bodies. The
AG’s efforts to label this remedy a “racial gerrymander” and analogize it to the
bizarrely-shaped districts that raised concerns in Shaw v. Reno miss the mark. In any
event, the Supreme Court and this Court recognize that §2 compliance serves a
compelling state interest, permitting some departure from TRPs, when the remedy
is narrowly tailored, as here.
The district court’s rulings should be affirmed.
2
COUNTER-STATEMENT OF JURISDICTION
This Court has appellate jurisdiction under 28 U.S.C. § 1291.
The district court had subject matter jurisdiction pursuant to 28 U.S.C.
§§1331, 1343(a)(3), 1357; 52 U.S.C. §§10301, 10308(f); and 42 U.S.C. §§1983,
1988. The district court had jurisdiction to grant declaratory and injunctive relief
pursuant to 28 U.S.C. §§2201, 2202.
COUNTER-STATEMENT OF ISSUES
1. Did the district court correctly rule that Plaintiffs have standing to bring their
claims against Louisiana’s AG and Governor under Ex parte Young, 209 U.S.
123 (1908)—consistent with how plaintiffs in Louisiana have brought voting
rights claims and where Defendants have roles in maintaining the
discriminatory system at issue and implementing a remedy?
2. Did the district court clearly err in finding as fact— after trial—that at-large
voting for the 32nd_JDC has discriminatory results in violation of §2, and a
discriminatory purpose in violation of §2 and the Fourteenth and Fifteenth
Amendments?
3. Did the district court correctly determine—based on the ubiquity of judicial
districts in Louisiana—that Louisiana’s linkage interest in at-large voting is
insubstantial, and even if it were substantial, that that interest would be
outweighed by the “strong case of vote dilution” for 32nd_JDC elections?
3
4. Did the district court abuse its discretion in permanently enjoining at-large
voting for the 32nd_JDC and ordering the adoption of a court-developed
remedy that is easy to administer because it is based on redistricting choices
of Terrebonne’s existing local bodies?
STANDARD OF REVIEW
A district court’s evaluation of a vote dilution claim is “peculiarly dependent
upon the facts” and involves “a searching practical evaluation of the ‘past and
present reality’” and “‘an intensely local appraisal of the design and impact’ of the
contested electoral mechanisms.” Thornburg v. Gingles, 478 U.S. 30, 79 (1986).
These findings of fact, including findings of discriminatory intent,1 “must not
be set aside unless clearly erroneous” and “due regard” must be given “to the trial
court’s opportunity to judge the witnesses’ credibility.” Fed. R. Civ. P. 52(a)(6). This
rule is strictly applied in this Court, even if “it is convinced that it would have
decided the case differently.” Matter o f Complaint ofLuhr Bros., Inc., 157 F.3d 333,
337-38 (5th Cir. 1998) (quoting Anderson v. City o f Bessemer City, 470 U.S. 564,
573 (1985)).
This Court gives strong deference to a district court’s weighing of expert
testimony, Bursztajn v. United States, 367 F.3d 485, 488-89 (5th Cir. 2004), and
1 See Rogers v. Lodge, 458 U.S. 613, 623 (1982) (a finding o f discriminatory intent is a
finding o f fact, subject to the clearly erroneous standard).
4
reviews the court’s decision to credit one expert over another for abuse of discretion.
See Cleveland ex rel. Cleveland v. United States, 457 F.3d 397, 407 (5th Cir. 2006).
Conclusions of law are reviewed de novo. Fairley v. Hattiesburg, Miss., 584
F.3d 660, 675 (5th Cir. 2009).
A district court is granted great leeway in crafting a remedy, which is reviewed
for abuse of discretion. See United States v. Brown, 561 F.3d 420, 435 (5th Cir.
2009).
COUNTER-STATEMENT OF FACTS AND
PROCEDURAL HISTORY
The AG’s Statement of the Case ignores, mischaracterizes, or minimizes the
abundant facts that support the district court’s detailed post-trial findings of fact and
conclusions of law.2
A. Liability Phase
In response to the Voting Rights Act of 1965’s (“VRA”) guarantee of Black
citizens’ right to vote, at-large voting emerged as one scheme intended to negate
their influence. ROA.29365. Prior to 1968, Louisiana prohibited at-large elections
for local governing bodies like parish councils and school boards. ROA.29365. Yet,
in 1968, responding to increased Black registration and voting because of the VRA,
References to the Appellant-Appendix are cited as ROA.___ . Documents filed with a
district court that are not in the Appellant-Appendix are cited as “ECF Cites to ECF documents
are to the ECF page number.
5
Louisiana authorized the use of at-large elections for these bodies. ROA.29365. The
32nd_JDC was created in 1968 with at-large elections. ROA.29365; ROA.29323.3
Because of at-large voting and other practices, many Black voters were denied
the opportunity to elect their preferred judges. ROA.29365. Louisiana’s judiciary
remained nearly all-white until the 1990s. See Clark v. Edwards, 725 F. Supp. 285,
288-89 (M.D. La. 1988); ROA.28935-37 n.10. The Chisom and Clark lawsuits
began to integrate Louisiana’s courts. ROA.29390.
In 1996, Louisiana Supreme Court’s Task Force on Racial and Ethnic Fairness
in the Courts recognized “the practice of judicial elections by sub-districts, where
appropriate, [is] the only feasible means of ensuring diversity and ethnic
heterogeneity in our judicial system.” ROA.29390-91. As at-large voting was
increasingly invalidated as discriminatory, ROA.29390, opportunity subdistricts
became more common. In response to litigation, the 1st, 4th, 9th, 14th, 15th, 18th,
19th, 23rd, 24th, 27th, and 40th JDCs, and numerous other lower and appellate
courts, including the Louisiana Supreme Court, implemented opportunity
subdistricts. ROA.29386 & n.372. Outside of litigation, Louisiana has voluntarily
abandoned at-large judicial elections, including, for example, for the 16th_JDC. La.
Rev. Stat. 13:621.16; ROA.33570 n.22. Now, the majority, 106 (55%) of
In subsequent years, DOJ objected to at-large voting for numerous Louisiana legislative
and judicial bodies. ROA.29365; ROA.28988.
6
Louisiana’s 193 judgeships, are elected by districts rather than at-large. ROA.29386-
87.
Yet change had not come to Terrebonne’s judicial elections, even as the Black
population steadily grew and the non-Hispanic white population steadily declined.
ROA.29322; ROA.29040 f 250; ROA.290441258.4 Since white voters make up the
majority of Terrebonne (72% in 2010) and vote together and not for the candidates
preferred by Black voters, white voters have consistently overwhelmed the candidate
preferences of Black voters (18% in 2010). ROA.28941 [̂16; ROA.29356. In 2008,
white voters reelected a white judge at-large over the staunch opposition of
Terrebonne’s Black community— even after the Louisiana Supreme Court
suspended him for wearing blackface, an afro-wig, a prison jumpsuit, and handcuffs
to a Halloween party. ROA.29327.
No Black candidate has ever won a contested election for the 32nd JDC or
been elected to any at-large elected position in Terrebonne— including Parish
President, District Attorney, Sheriff, Coroner, Clerk of Court, Tax Assessor, City
Marshal, and Houma City Court Judge. ROA.29321; ROA.29373. Over a 20-year
period, racially polarized voting (“RPV”) has persisted and the candidates preferred
by Black voters have been defeated repeatedly and resoundingly in at-large
4 Although the Clark parties stipulated in 1988 that then-existing demographics for the
32nd_JDC did not render a majority-Black subdistrict feasible, demographics have changed.
ROA.29390; RO A.29322.
7
elections, regardless of whether they have run: as Republicans, Democrats, or
otherwise; for judicial or non-judicial office; or for local, state, or federal office.
ROA.29356. Black-preferred candidates have won seats to the Parish Council and
School Board—but only in the two opportunity subdistricts created after a §2 lawsuit
in the 1970s. ROA.29328; ROA.29366. Per Dr. Richard Engstrom, a political
scientist who has testified in over 100 voting rights cases, this case involves one of
the most, i f not the most, racially polarized environments he has ever seen.
ROA.29356 & n.233; ROA.28972 n.51.
Since the mid-1980s, beginning with Clark, Black lawyers, citizens, and the
Terrebonne NAACP have advocated for a 32nd_JDC opportunity subdistrict.
ROA.29390. Yet, between 1996 and 2011, Louisiana’s Legislature rejected six bills
that would have provided for one. ROA.29321-22; ROA.29324-27. These bills
included proposals to have an opportunity subdistrict for one of the five 32nd_JDC
seats. They also included requests by 32nd_JDC judges and the Houma City Court
Judge for additional judgeships (supported by other prominent white officials)—
requests that were suddenly abandoned when the Black community asked that the
judgeship be elected by an opportunity subdistrict. ROA.29324-27.
Black voters filed this lawsuit in 2014 after exhausting all political avenues
over two decades. ROA.28932 n.2.
8
After the lawsuit was filed, Juan Pickett, in an uncontested election, became
the first Black person ever to be seated as a 32nd_JDC judge. ROA.29373. For the
first time, no white attorney—none of the approximately 160 white Terrebonne
lawyers— competed for an open 32nd_JDC seat. ROA.29327; ROA.29373. There is
no evidence Mr. Pickett was the candidate of choice of Black voters; as an
unopposed candidate, his name was not listed on the ballot. ROA.29375.
In that same electoral cycle, there was another at-large judicial election for an
open seat on the Houma City Court, which like the 32nd JDC, exercises concurrent
territorial jurisdiction. ROA.29358; ROA.28973. Unlike Mr. Pickett, Cheryl Carter,
a Black woman, ran as a Republican, against two white male Republicans.
ROA.28973. Despite receiving 85% of Black voter support, Ms. Carter came in
third, receiving only 8% of white voter support. ROA.28973.
After trial, which included 27 testifying witnesses and over 350 exhibits, the
district court ruled that Louisiana’s use of at-large voting for the 32nd_JDC diluted
Black voting strength and had been maintained for a racially discriminatory purpose
in violation of §2 and the Constitution. ROA.29313.
The Court concluded that Plaintiffs satisfied their burden of showing that at-
large voting has discriminatory results in violation of §2 because: it is possible to
develop a single-member district (“SMD”) that is comprised of a compact and
numerical majority of Black voters that complies with TRPs, ROA.29329-50; a stark
9
pattern of RPV exists in Terrebonne elections that Defendants did not establish is
explained by non-racial reasons, ROA.29351-62; and almost all of the factors
considered in a “totality of circumstances” analysis were present in this case,
ROA.29363-88.
With much of Plaintiffs’ evidence of intentional discrimination unrebutted,
the court found Plaintiffs established all but one of the factors that guide an analysis
of discriminatory purpose under §2 and the Constitution: at-large voting for the
32nd JDC has a discriminatory impact; Louisiana and Terrebonne have a history of
de jure and de facto discrimination; and Louisiana officials maintained at-large
voting for the 32nd_JDC—rejecting multiple alternative proposals— for pretexual
and tenuous justifications. ROA.29388-403.
B. Remedial Phase
Thereafter, the court provided the Legislature “ample” opportunity to cure the
constitutional and statutory violations over the course of the 2018 and 2019
legislative sessions. ROA.46, ECF 297; ROA.50, ECF 332; ROA.30533. The court
also provided the parties with the opportunity to propose remedies. ROA.46.
Plaintiffs proposed remedial maps. See, e.g., ROA.29504-06. Neither the AG nor
Governor proposed anything, with the AG persisting that no opportunity subdistrict
is possible in Terrebonne without racial gerrymandering. ROA.29576-80;
10
ROA.29659-60. Instead, the AG personally met with legislative members and urged
them not to introduce any remedial legislation. See, e.g., ROA.29681; ROA.30483.
Ultimately, in 2018, Rep. Randal L. Gaines, Chair of Louisiana’s Legislative
Black Caucus, introduced a bill to create an opportunity subdistrict, House Bill
(“HB”) 861. ROA.29681-85. It was voted down in committee 5 to 3—without any
amendments or alternative proposals offered. All legislators who opposed the bill
were white, whereas the only two Black committee members present at the hearing,
elected from opportunity subdistricts, supported it. While various representatives of
Black communities supported the bill, including the Martinet Society (a 60-year-old
association of Louisiana’s Black lawyers), two white people testified in opposition,
including an individual the district court recognized as one of the “most prominent
opponents of a black opportunity district,” offering many of the same arguments the
court identified as tenuous and pretexual in its liability ruling. ROA.29681-84. This
legislative defeat marked the seventh time the Legislature rejected a bill seeking to
create an opportunity subdistrict in the 32nd_JDC. ROA.29681-82.
After Defendants and the Legislature failed to act, the court appointed a
special master in July 2019 to assist in developing a remedy. ROA.30173. The
special master considered the voluminous record, ROA.30183, and four potential
remedial plans, each of which “include[d] a majority-black district which generally
complies with traditional redistricting criteria,” and was “likely to provide an
11
effective remedy.” ROA.30523; ROA.30181-82. The district court ordered the
implementation of one of the special master’s remedial plans, Plan 2, which provides
for election by five SMDs, including one opportunity subdistrict. ROA.30532;
ROA.30553-54. The special master primarily recommended this plan, over the three
other he considered, “[b]ecause the design[] of Plan 2 is based on the Parish Council
districts,” therefore “the consistent grouping of communities should allow for easier
election administration and less confusion among voters in the initial election by
district.” ROA.30193; ROA.30523.
The Governor did not object that Plan 2 included an opportunity subdistrict; but he
opposed that the other judges will be elected from districts, not at-large. ROA.30348. The
AG maintained his racial gerrymander argument. ROA.30390; ROA.30514.
In Fall 2020, all five 32nd_JDC seats are up for election for six-year terms,
including two seats that will be open due to mandatory retirement—presenting an
opportunity for one of those seats to be elected from the remedial subdistrict.
ROA.29343.
SUMMARY OF THE ARGUMENT
After an 8-day trial, the district court made detailed factual findings, which
establish that the maintenance of at-large elections for the 32nd_JDC violates §2 and
the Fourteenth and Fifteenth Amendments. When the state legislature declined to
remedy those violations, the court adopted the special master’s Plan 2, which does
12
so. The AG raises various objections to those rulings, but does not begin to meet the
high bar of showing the court’s factual findings were clearly erroneous, or the court
abused its discretion in implementing the remedial plan.
This is a straightforward redistricting case, raising standard claims, naming
common and proper parties, and seeking relief that is required by this Court’s
precedent—relief that is entirely consistent with practices currently in place
throughout Louisiana. Both Defendants—the Governor (who has not appealed) and
the AG (who has)— are properly named defendants with election-related
connections to the 32nd_JDC and who can implement the district court’s
remedy. With the Governor’s consent, the Legislature can determine electoral
methods and, but for his conduct, 32nd_JDC members cannot take office under the
remedial plan. The AG acts in advising Louisiana officials on compliance with
election law, including remedies for VRA violations.
The district court’s factual findings establish that at-large voting for the
32nd_JDC violates §2. As the court found, Plaintiffs meet the Gingles factors
because they demonstrated: (1) a majority-Black and geographically compact
district for the 32nd JDC, which respects TRPs, can be drawn; (2) Black voters are
politically cohesive; but (3) white bloc voting—always—overwhelms Black voters’
candidate preferences. That compelling evidence of RPV is not overcome by a single
uncontested election of a Black judge or explained by non-racial reasons.
13
The district court found Plaintiffs established the existence of seven of the
nine congressionally-delineated “Senate factors”— including two of the most
significant. Based on these findings, the court correctly found the “totality of
circumstances” demonstrates Black voters have less opportunity to participate in
Terrebonne’s political process than other voters. These findings are amply
supported, and the AG cannot demonstrate any is clearly erroneous.
The district court thoroughly considered and recognized Louisiana’s linkage
interest in at-large voting for judicial elections; but it also found Louisiana’s interest
was not “substantial” because Louisiana— unlike Texas— abandoned that interest by
creating subdistricts for judicial elections both to resolve litigation and outside of
litigation. The court held that even if Louisiana’s linkage interest had been
substantial, the compelling evidence of vote dilution in Terrebonne outweighed
Louisiana’s linkage interest.
The district court found Louisiana has been motivated, at least partly, by
intentional discrimination in maintaining the 32nd_JDC’s at-large electoral system.
Using Arlington Heights as a guide, the court based this factual finding on the clear
pattern that emerged at trial of white officials impeding advocacy for a majority-
Black subdistrict, stretching over decades. Louisiana officials rejected six bills that
would have changed the 32nd_JDC’s electoral method. This included the
Legislature’s rejection of bills that 32nd_JDC judges and other white officials
14
initially lobbied for, only to change their minds when it became apparent that they
could result in the creation of an opportunity sub-district. The district court properly
rejected Defendants’ alternative and post-hoc rationalizations for why these bills
were unsuccessful. This pattern was buttressed by additional proof of intentional
discrimination: at-large voting’s discriminatory impact on Terrebonne’s Black
voters; Louisiana and Terrebonne’s history of voting discrimination; and
contemporary statements made in opposition to an opportunity subdistrict the court
found pretextual and tenuous.
On appeal, the AG dedicates just two pages to disputing the voluminous trial
record on discriminatory purpose and fails to engage with key evidence supporting
that finding. The AG’s cursory argument does not begin to meet his burden of
establishing clear error.
After the Legislature had two legislative sessions to respond to the illegal vote
dilution in Terrebonne, the court appointed a special master and adopted his
recommended Plan 2. Far from a racial gerrymander, Plan 2 is constitutionally
acceptable and fully complies with TRPs. It is largely based on the choices Louisiana
officials already have made to combine areas of Terrebonne—parts of Houma,
Shriever and/or Gray— into majority-Black SMDs for Parish Council and School
Board elections.
15
The Supreme Court in Chisom held §2 applies to judicial elections. Louisiana,
having chosen to elect its judges, must therefore comply with the VRA and redress
vote dilution where it exists. Those basic principles are dispositive here, and the AG
does not meet its high burden of establishing any of the district court’s factual
findings are clearly erroneous or it abused its discretion in drawing the remedial
map.
16
ARGUMENT
I. There is Subject Matter Jurisdiction.
The AG contends that Plaintiffs lack standing because Defendants are
improper parties. He also contends that Defendants are entitled to sovereign
immunity under the Eleventh Amendment and therefore this Court lacks subject
matter jurisdiction to hear Plaintiffs’ §2 and Fourteenth and Fifteenth Amendment
claims.
The AG is wrong. The Governor has not appealed and does not dispute subject
matter jurisdiction. Thus, the AG’s arguments on behalf of the Governor are
irrelevant. They also lack merit. Because of Defendants’ roles in maintaining at-
large voting for 32nd_JDC elections and their power to address its harm, they are
proper defendants. Given Defendants’ connections to redistricting and elections in
Louisiana, each also is a proper official-capacity defendant under Ex parte Young.
A. The AG’s Arguments About “Traceability” and “Lack of
Redressability” Lack Merit.
The AG claims that neither Defendant plays any role in 32nd_JDC elections
or the remedial process and, therefore, Plaintiffs lack standing. AG. Br. 21-29. But
multiple provisions of Louisiana law set forth Defendants’ powers and duties with
respect to elections, and establish their roles in maintaining the challenged practice
and their ability to remedy it.
17
So long as the government official’s conduct is causing an injury to plaintiff
and a favorable ruling requiring the official to implement a remedy would redress it,
a plaintiff has standing to bring an official-capacity suit against that official.
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010) (“Standing under
Article III of the Constitution requires that [1] injury be concrete, particularized, and
actual or imminent; [2] fairly traceable to the challenged action; and [3] redressable
by a favorable ruling.”); see also Air Evac EMS, Inc., 851 F.3d 507, 513-14, 516
(5th Cir. 2017) (recognizing “the significant overlap between standing and Ex parte
Young's applicability,” and noting that Ex parte Young is a “straightforward inquiry”
into whether defendants have “some connection” to the implementation of the
challenged state law).
This standard is clearly satisfied when the defendant is the governor—the
state’s chief executive officer—and/or the attorney general—the state’s chief legal
officer. Courts routinely adjudicate official-capacity suits against these defendants
and enjoin them in judicial election challenges without further inquiry. See, e.g.,
Chisom v. Roemer, 501 U.S. 380, 384 (1991) (in holding §2 applies to judicial
elections, noting the case was “against the Governor and other state officials”)
(emphasis added); Prejean v. Foster, 83 F. App’x 5, 11 (5th Cir. 2003) (in a judicial
elections suit, naming the AG and Governor as defendants, upholding remedial
legislation for the 23rd JDC); Hall v. Louisiana, 983 F. Supp. 2d 820, 824-26, 832-
18
33 (M.D. La. 2013) (denying Governor and A G ’s motion to dismiss a §2 and
constitutional challenge to the electoral method for the Baton Rouge City Court on
the ground they were proper defendants); Chisom v. Edwards, 690 F. Supp. 1524,
1536, 1539 (E.D. La. 1988) (in challenge to use of multimember districts to elect
Justices of Louisiana’s Supreme Court under §2 and the Constitution, enjoining the
Governor), vacated on other grounds sub nom., Chisom v. Roemer, 853 F.2d 1186
(5th Cir. 1988); Clark, 725 F. Supp. at 287 (in challenge to use of multimember
districts for electing court of appeal, district, and family court judges in Louisiana
under §2 and the Constitution, enjoining the Governor and AG, along with other
defendants, from implementing judicial elections while remedy was being devised);
see also Clark v. Roemer, 111 F. Supp. 471, 454-69 (M.D. La. 1991); African-
American Citizens fo r Change v. Robbins, 825 F. Supp. 885, 891 (E.D. Mo. 1993);
ROA.29315-16; ROA.29225; ROA.28935-37; ROA.21549-54.
The AG ignores these and numerous other Louisiana redistricting cases
recognizing the Governor and AG as proper defendants. Compare AG’s Br. 21-29
with ROA.21552 n.6 (identifying additional cases).
Defendants also are properly sued because of their specific roles in carrying
out Louisiana’s elections and ensuring proper implementation of a remedy. Under
state law, the Legislature, with the Governor’s consent, can determine trial court
judge’s electoral methods. ROA.29385 (citing L a . C o n s t , art. V , §22(A), art. XI,
19
§1, art. Ill); see also 4 U.S.C. §101; L a . C o n s t , art. IV. §5(A). Under Louisiana’s
Election Code, the Governor is responsible for issuing commissions to judicial
elections’ winners, necessary for them to take office, and for calling and setting dates
for any special elections needed to fill vacancies. L a . C o n s t , art. IV, § 5(A); L a .
R e v . S t a t . A n n . §§18:513(A)(5), (B), 18:621(A), 42:141, 49:211; L a . C o n s t , art.
V, §22(B); see also ROA.21554; ROA.28934-35; ROA.28938-39; ROA.29224-25.
By issuing commissions to judges elected under the discriminatory challenged
system, the Governor causes Plaintiffs’ injuries. By implementing the remedy
required by the district court before providing any commissions, he will redress that
injury. See Monsanto Co., 561 U.S. at 149. The Governor clearly has connections to
the enforcement of at-large voting for the 32nd_JDC, and an injunction against him
would stop the challenged practice and allow a remedy to take effect.
The Governor’s actions alone are sufficient to confer this Court’s jurisdiction.
Price v. Pierce, 823 F.2d 1114, 1118 (7th Cir. 1987) (“If at least one plaintiff had
standing when the suit was brought and certified as a class action, and if continuously
after that there was a live controversy between at least one defendant and one
member of the class (not necessarily a named plaintiff), there is federal jurisdiction.”
(citing Sosna v. Iowa, 419 U.S. 393, 402 (1975)).
But the AG is also a proper defendant. As Louisiana’s chief legal officer, 4
U.S.C. §101; L a . Const, art. IV, §8, the AG has the authority to advise officials on
20
compliance with election law, La . Rev. Stat. Ann. §49:251, including the
32nd_JDC remedial plan,5 and defend the court’s plan, if subsequently challenged.
ROA.29316; ROA.21554-55 & n.15; ROA.28935.
The AG has played an integral role in implementing judicial elections in
Louisiana. The AG represented to another court that “the state has a vital interest in
how [Louisiana] district judges are elected, and the [AG] is bound to pursue those
interests.” See Mot. to Alter or Amend J., Campbell v. Edwards, No. CV 17-1261-
JWD-EWD (M.D. La. Mar. 20, 2018), ECF 35 at 7. There, the AG attempted to
“implement state law” regarding judicial elections by launching a collateral attack
on Clark v. Roemer, “pray[ing] that the court reopen [that case] and modify the
judgment therein to declare sub districts for the election of [Louisiana] district judges
legally unsupportable such that elections for [Louisiana] district judges would
default to districtwide elections as provided by state law.” Id. at 2; see also id. at 5-
6 (AG working to “allow the state to effectuate its laws” regarding judicial
elections).
Here, the AG has used his authority to block potential remedies. After the
Legislature had the first opportunity to remedy the violations, ROA.30483, the AG
The AG may be called to issue legal opinions on federal and state election law as it
previously has related to: lockouts for judicial elections, La. AG Op. 02-189, 2002 WL 1483936
(2002); the application o f a remedial order, La. AG Op. 00-274, 2000 WL 1132731 (2000); and
electoral methods forjudges, including SM Ds, La. AG Op. 99-30, 1999 WL 372514 (1999); see
also RO A.28935 & n.8; ROA.29342-43 & nn. 171-72 (explaining lockouts and their prevalence in
Louisiana’s judicial elections and impact on the 32nd_JDC); ROA.28951 l)|48-53 & n.27.
21
met with Terrebonne’s legislative delegation members and urged them not to
introduce or support remedial legislation. See, e.g., ROA.29936; ROA.30368.
The AG’s reliance on Okpalobi v. Foster, 244 F.3d 405, 427 (5th Cir. 2001),
is misplaced. There, healthcare providers challenged the constitutionality of a
Louisiana statute that provided “a private tort remedy against the doctors who
perform the abortion.” 244 F.3d at 409-10. This Court reasoned that the Governor
and AG “could never themselves cause any injury under th[is] private civil scheme”
since the harm stemmed from “the filing and prosecution of a private civil action”
by the doctors’ female patients. Id. at 409-10, 428. Here, however, the Governor is
required to implement and uphold Louisiana election law, including issuing
commissions to 32nd JDC election winners, and the AG is duty-bound to advise
Louisiana’s officials on compliance with the 32nd_JDC’s remedial plan.
Finally, the AG’s emphasis that the Secretary of State (“SOS”) also has some
responsibility over 32nd_JDC elections, but has been voluntarily dismissed, is a red
herring. That the SOS has an obligation to remedy the violations of Plaintiffs’ voting
rights does not absolve Defendants of their own responsibility to do the same.
ROA.29316 (citing K.P. v. LeBlanc, 627 F.3d 115, 123 (5th Cir. 2010), (plaintiff
had standing to sue the board even though it was far “from the sole participant in the
application of the challenged statute”)). The SOS has repeatedly proclaimed his
duties with respect to elections are “purely ministerial” and his office would
22
administer elections in accordance with the method set by the Legislature or
judiciary. See ROA.167; ROA.274-75. This confirms that Plaintiffs have standing
here. See Utah v. Evans, 536 U.S. 452,463-64 (2002) (plaintiff had standing because
it was “substantially likely” other government officials who were not defendants in
the case “would abide by an authoritative” ruling of the court and “bring about the
ultimate relief that [the plaintiff] seeks”).
As in Chisom and other lawsuits, this case can be adjudicated on the merits
without the SOS. See Chisom v. Jindal, 890 F. Supp. 2d 696, 711, 728-29 (E.D. La.
2012) (granting request to dismiss SOS even though the final remedy “ha[d] not yet
been implemented”); see also Citizens fo r a Better Gretna v. City o f Gretna, La.,
636 F. Supp. 1113, 1114, 1135 (E.D. La. 1986), a ff’d, 834 F.2d 496 (5th Cir. 1987);
Theriot v. Parish o f Jefferson, 966 F. Supp. 1435, 1437-38, 1449-50 (E.D. La. 1997),
a ff’d, 185 F.3d 477 (5th Cir. 1999); ROA.29315-16; ROA.21869-71; ROA.29225-
26.
For these reasons, the district court was correct. Article III standing is
established. See Lujan v. Defenders o f Wildlife, 504 U.S. 555, 560-61 (1992).
23
B. The Ex parte Young Exception Allows Appellees’ Constitutional
Claims.
Appellees’ claims fit squarely within the Ex parte Young exception to
Eleventh Amendment sovereign immunity, which allows a federal court to “enjoin
state officials to conform their future conduct to the requirements of federal law.”
Quern v. Jordan, 440 U.S. 332, 337 (1979).6“ln determining whether the doctrine
of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only
conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing
violation of federal law and seeks relief properly characterized as prospective.’” Va.
O ff fo r Prot. & Advoc. v. Stewart, 563 U.S. 247, 255 (2011) (citation omitted). For
the exception to apply, a plaintiff “must demonstrate that the state officer has ‘some
connection’ with the enforcement of the disputed act.” K.P., 627 F.3d at 124 (citing
Ex parte Young, 209 U.S. at 157).
Here, unquestionably, Plaintiffs sought injunctive relief against state officers
in federal court seeking to enjoin them from continuing to violate federal law.
ROA.61; ROA.82. Contrary to the AG’s contention, AG’s Br. 29-32, as explained
supra, Defendants have “some connection” to 32nd_JDC elections and remedying
the vote dilution the district court found.7
6 The VRA “abrogated state sovereign immunity.” OCA-Greater Houston v. Texas, 867 F.3d
604, 614 (5th Cir. 2017).
The cases cited by the AG (A G ’s Br. 30 n. 6 & 32), do not address redistricting— and shed
no light on Defendants’ roles in implementing a remedial electoral plan. See Robicheaux v.
Caldwell, 986 F. Supp. 2d 749, 752 (E.D. La. 2013) (law precluding recognition o f out-of-state
24
II. The District Court’s Factual Finding that At-Large Voting Has
Discriminatory Results Should Be Affirmed.
Under Gingles, Plaintiffs must satisfy three preconditions to show that the
voting practice at issue impermissibly dilutes the right to vote on account of race in
violation of §2’s results test. ROA.29317-18; see also Teague v. Attala Cty., 92 F.3d
283, 287 (5th Cir. 1996). These three preconditions are: “(1) the minority group is
“sufficiently large and geographically compact to constitute a majority in a [SMD]”
{Gingles one); (2) the minority group is “politically cohesive” {Gingles two); and
(3) the “majority votes sufficiently as a bloc to enable it . . . usually to defeat the
minority’s preferred candidate” {Gingles three).” ROA.29317-18 (quoting Gingles,
478 U.S. at 50-51). “It will be only the very unusual case in which the plaintiffs can
establish the existence of the three Gingles factors but still have failed to establish a
violation of [§]2 under the totality of circumstances.” ROA.29318; ROA.29363
(citing Clark v. Calhoun Cty., 21 F.3d 92, 97 (5th Cir. 1994), and Teague, 92 F.3d.
at 293).
same-sex marriage); June Med. Servs v. Caldwell, No. 14-525, 2014 WL 4296679, at *1 (M.D.
La. 2014); Doe v. Jindal, No. 11-554, 2011 WL 3664496, at *1 (M.D. La. 2011); Doe v. Jindal,
2011 WL 3925042, at * 5 (E.D. La. 2011); King v. Louisiana ex rel. Jindal, No. 13-4913, 2013
WL 5673584, at *1 (E.D. La. 2013).
25
A. The Record Amply Supports the District Court’s Finding that
Plaintiffs Satisfied Gingles One.
The district court’s thorough examination of Gingles one must be affirmed. It
is not clearly erroneous. See ROA.29329-51.8
Plaintiffs’ Gingles one expert, William Cooper, presented Plaintiffs’
Illustrative Plan, which included five SMDs, including District 1, an opportunity
subdistrict. ROA.29330-31. Over 30 years, Mr. Cooper has “prepared redistricting
maps for approximately 700 jurisdictions for Section 2 litigation and other efforts to
comply with the VRA.” ROA.29330. As of trial, Mr. Cooper had testified in federal
court as an expert on redistricting and demographics in about 35 voting rights cases,
including three in Louisiana, and on behalf of minority plaintiffs, governmental
entities, and DOJ. ROA.28942 at n.16; ROA.33411.
1. Numerosity
Whether a minority population is sufficiently numerous is a bright-line test
that the population in the proposed opportunity subdistrict meets 50% plus one. See
The AG makes generalized claims that Plaintiffs failed to satisfy Gingles one’s liability
requirements (A G ’s Br. 33); but he primarily critiques the district court’s remedial opportunity
subdistrict (A G ’s Br. 34-49)— with both opportunity subdistricts identified as District 1. The AG
asserts the liability plan must be unconstitutional because the court-drawn plan is (and vice versa).
A G ’s Br. 34. But, as discussed infra, (a) under binding precedent, the standard for assessing a
liability plan is distinct from a remedial one; and (b) as a factual matter, the plans are
distinguishable, though both legal. Accordingly, Plaintiffs separately address the district court’s
proper findings with respect to Plaintiffs’ liability and its remedial plans.
26
Bartlett v. Strickland, 556 U.S. 1,16 (2009); Valdespino v. Alamo Heights Ind. Sch.
Dist., 168 F.3d 848, 852-53 (5th Cir. 1999).
The court was within its discretion to credit the uncontested testimony of not
only Mr. Cooper, but also Defendants’ experts, Michael Hefner and Dr. Ronald
Weber, who “all agreed that the black population in Terrebonne is sufficiently
numerous such that District 1 has greater than 50% voting-age black population.”
ROA29332. Despite the AG taking a position on appeal inconsistent with his own
expert’s view about numerosity, the district court did not err, much less clearly err,
in finding that District 1 in Plaintiffs’ Illustrative Plan has a sufficiently large
minority population. Compare AG’s Br. 33 with ROA.29333.
2. Compactness o f Terrebonne’s Black Population
The district court next considered whether Terrebonne’s minority population
is geographically compact. The purpose is “to show that the challenged electoral
practice, rather than the dispersion of the minority community, prevents the affected
minority group from electing the candidates their choice.” Rodriguez v. Harris Cty.,
Tex., 964 F. Supp. 2d 686, 737 (S.D. Tex. 2013). The court was “mindful that
‘districting is hardly a science’ and that there will often be ‘more than one way to
draw a district so that it can be reasonably be described as meaningfully adhering to
traditional principles.’” ROA.29334 (quoting Chen v. City ofHous., 206 F.3d 502,
519 (5th Cir. 2000)).
27
The court credited Mr. Cooper’s testimony in finding that Plaintiffs’
Illustrative Plan contained a geographically compact Black community in District 1
given that its shape was as regular as other districts in Louisiana; it resembles State
House Districts 51 and 52, and Senate District 21, which are both partially located
in Terrebonne, and the electoral districts of two local bodies: the Parish Council and
School Board. ROA.29334-37. See Houston v. Lafayette Cty. Miss., 56 F.3d 606,
611 (5th Cir. 1995) (district court “clearly erred in finding that the black population
. . . was not sufficiently geographically compact,” given “the compactness of the
district in the . . . proposed plan resembles that of many districts considered
constitutionally acceptable by other courts”). District 1 in Plaintiffs’ Illustrative Plan
joins parts of Houma, Gray, and Schriever, where Black residents are geographically
concentrated and contain the highest concentrations of Black residents in
Terrebonne. ROA.29336. Similar areas also are included in the above-mentioned
Louisiana districts. ROA.29336-37.
The district court also credited Mr. Cooper’s testimony that the map’s
statistical scores of compactness fall within the norm when compared to other
districts in Louisiana, ROA.29337-38. As the court heard, such “quantitative scores
should be used to make comparisons, not to eliminate plans or districts that fail to
meet a predetermine level. There is no score for any one measure . . . that on the face
of it indicates unsatisfactory compactness.” ROA.28946.
28
The court found “District 1 compares favorably both in terms of its shape and
its geographical compactness to other surrounding electoral districts.” ROA.29338.
It bears emphasis that Gingles one “does not require some aesthetic ideal of
compactness.” Clark, 21 F.3d at 95; see also ROA.29335 (citing Dillard v. Baldwin
Cty. Bd. o f Educ., 686 F. Supp. 1459, 1465-66 (M.D. Ala. 1988)). The relevant
inquiry “is not whether the . . . proposed district [is] oddly shaped, but whether the
proposal demonstrate[s] that a geographically compact district [can] be drawn.”
Houston, 56 F.3d at 611.
As the diagrams below demonstrate, District 1 in Plaintiffs’ Illustrative Plan
resembles other, relevant electoral districts in Terrebonne. The district court’s
factual findings that the shape and statistical compactness of District 1 satisfy
Gingles one was therefore not clearly erroneous.
29
ROA.33436
30
Terrebonne Parish Sections of House Districts 51 and 52, ROA.33431
Louisiana State Senate, ROA.33432
31
3. The A G ’s Racial Geriymandering Analysis in Assessing Gingles One
is Misplaced
Under Gingles one, the sole inquiries are whether the minority community is
sufficiently large and geographically compact to constitute a majority in a SMD.
Thus, although the AG contends the Plaintiffs’ Illustrative Plan constitutes an
unconstitutional “racial gerrymander,” the district court recognized that this kind of
“racial gerrymander” analysis is misplaced in a Gingles one analysis. ROA.29346.
It is well-established that the equal protection inquiry of whether “race was the
predominant factor” is distinct from a Gingles one inquiry, League o f United Latin
Am. Citizens v. Perry, 548 U.S. 399,432-34 (2006) (“LULAC”). This Court has held
that the equal protection inquiry should not be used to assess Gingles one. See Clark
v. Calhoun Cty., 88 F.3d 1393, 1406-07 (5th Cir. 1996) (holding “Miller and its
progeny [did not] work a change in the first Gingles inquiry” and rejecting argument
that “a proposed district that violates Miller does not satisfy the first Gingles factor
per se”); id. (“W e... disagree that Miller is relevant to the first Gingles factor.”); see
also Davis v. Chiles, 139 F.3d 1414, 1425 (11th Cir. 1998).
Even so, the district court found that the Illustrative Plan is not a racial
gerrymander because it had all of the indicia demonstrating that race was not the
predominant factor in its development. ROA.29348; see also ROA.29334 (“While
there is no bright-line rule governing a Section 2 compactness determination,” the
32
inquiry should take into account [TRPs] “such as maintaining communities of
interest and traditional boundaries.”) (citing LULAC, 548 U.S. at 433). Specifically,
in addition to preserving minority voting strength in Terrebonne, ROA.29344, the
Illustrative Plan also complied with other TRPs in that it: indisputably contained
contiguous districts, ROA.29339 (“All of the Gingles one experts agreed that
District 1 is contiguous.”); while legally not required, indisputably satisfied the one
person, one vote (“OPOV”) principle, ROA.29339 (“The Illustrative Plan has an
overall deviation from population equality of 5.2% and complies with the [OPOV]
principle” with all Gingles one experts in agreement); respected communities of
interest, combining communities included in existing electoral districts, ROA.29340
(“[T]he testimony at trial, especially from Plaintiffs themselves, showed that the
areas that constitute District 1 share a common bond.”); minimized split precincts,
ROA.29342-43 (“split precincts can be adequately accommodated by using
lockouts, which are inexpensive and easily administered” as supported by trial
testimony from Defendants’ own election administrator witness);9 and indisputably
protected incumbents by not requiring them to run against each other, ROA.29344
(with all Gingles one experts in accord).
Mr. Cooper presented an alternative plan at trial to show an opportunity subdistrict could
be drawn without precinct splits. ROA.29430, ROA.29343. Plaintiffs clearly demonstrated that a
“geographically compact district [can] be drawn.” Houston, 56 F.3d at 611.
33
The court credited Mr. Cooper and rejected Defendants’ experts as not
credible. ROA.29329-51. These findings—based on live testimony and record
evidence—were not clear error. The district court found Mr. Cooper adhered to
TRPs; he included majority-white census blocks within District 1 to improve its
shape, and the court made additional factual findings that the shape of District 1 is
“much more normal looking than the districts found invalid under the Equal
Protection Clause for using race as the predominant factor.” ROA.29348-49 (citing
Cooper v. Harris, 137 S. Ct. 1455, 1482-84 (2017) (N.C. Congressional Districts
(“CD”) 1 and 12); Miller v. Johnson, 515 U.S. 900, 928 (1995) (Ga. CD 11); Hays
v. Louisiana, 839 F. Supp. 1188, 1211 (W.D. La. 1993) (La. CD 4)). The court
explained that the existence of precinct splits or the combining of parts of Houma
with Gray and Schriever in District 1, which “constitute a unified community,” do
not prove race was the predominant factor in drawing the plan. ROA.29349.
Finally, the district court also concluded that even if the Illustrative Plan were
a racial gerrymander, it would satisfy strict scrutiny because the plan “is narrowly
tailored to remedy” the §2 violation. ROA.29350 (citing Clark, 88 F.3d at 1405-07
(compliance with §2 “constitutes a compelling governmental interest”)). “In other
words, the Court finds that the plan does not use ‘race substantially more than is
reasonably necessary’ to remedy the Section 2 violation.” ROA.29350 (quoting
Clark, 88 F.3d at 1407).
34
The district court’s fact-intensive findings on Gingles one were not clearly
erroneous. The AG’s arguments to the contrary are based upon evidence the court
found non-credible and are inconsistent with the law of this Circuit.
B. The District Court Correctly Found that Plaintiffs Satisfied Gingles
Two and Three.
The AG largely ignores the district court’s factual findings that Plaintiffs
satisfied Gingles two and three. See AG’s Br. 50-54. These facts, however, are the
heart of a §2 case. See Gingles, 478 U.S. at 55 (“[C]ourts and commentators agree
that racial bloc voting is a key element of a vote dilution claim.”); McMillan v.
Escambia Cty., 748 F.2d 1037, 1043 (5th Cir. 1984) (“[RPV] will ordinarily be the
keystone of a dilution case”).
1. RPV
The district court credited the testimony of Plaintiffs’ expert, Dr. Richard
Engstrom, who had testified in 100 voting rights cases, including Clark, Chisom,
and Major v. Treen, and whose work was cited with approval in Gingles and other
Supreme Court cases. ROA.29352 n.223; ROA.28971 n.51. The court accepted Dr.
Engstrom’s testimony that “the magnitude of polarization” in this case “would
certainly be among the most polarized context or environment” he had ever
analyzed. ROA.29356 & n.233. Notably, experts for both parties “had nearly
identical statistical findings.” ROA.29353.
35
Dr. Engstrom testified that he examined seven elections in which at least one
Black candidate competed against one white candidate and the candidates preferred
by Black voters lost every time. ROA.29353. That evidence consisted of the
following:
36
ROA.7582
Dr. Eugstrom's Racially Polarized Voting (RPY) results iu ierrebonne Parish
Election °/o of African American
vote
° o of Non-African
American vote
Houma City Court (2014)
Carter S5.1 (7 3 .3 -9 4 .8 ) 8.3 (7.3 - 9.6)
32nd JDC (1994)
Lewis 72.8 ( 6 S .S -77.3) 1.1 (0 .7 - 1.6)
Court of Appeal (1993)
Lewis 99.2 (9 7 .8 -9 9 .7 ) 10.5 (8.2 - 12.9)
City Marshal (2014)
Moselv 8 1 .8 (7 5 .6 -8 9 .5 ) 5 .5 (4 .1 - 6 9 )
Tax Assessor (2011)
Williams 71.4(66.1 -7 7 .4 ) 2.6 (1 .7 -3 .4 )
President (2012)
Obama 99.8 (99.4 - 99.9) 12 .8 (11 .3 -14 .2 )
President (2008)
Obama 99.6 (99.3 - 99.8) 1 3 .7 (1 2 .2 - 15.2)
Source: Exhibit 12 (Report o f Dr. Richard L. Engstrom. Jan. 23. 2015)
Dr. Weber’s Racially Polarized Voting (RPV) results in Terrebonne Parish
Election % of African American °/o of Non-African
vote American vote
Houma City Court (2014)
Carter S4.5 (80.1 -8 7 .1 ) 6.1 (5 .5 -6 .9 )
32nd JDC (1994)
Lewis 71.2 ( 6 9 .S - 72.3) 1.2 (1.0 - 1.5)
Court of Appeal (1993)
Lewis 9S.S (9S. 1 -9 9 .2 ) 9 .9 (9 .7 -1 0 .2 )
City Marshal (2014)
Mosely S2.0 (7S.2 - 84.3) 5.3 (4 .7 -6 .1 )
Tax Assessor (2011)
Williams 67.3 (63.9 - 69.4) 1.6 (1 .3 -2 .2 )
President (2012)
Obama 9S.1 (96 .6 -9S .9 ) 12.3 (12.1 - 12.6)
President (2008)
Obama 9S.S (97 .7 -9 9 .3 ) 13 .0 (12 .9 -13 .2 )
Source: Exhibit 2 (Report o f Dr. Ronald E. Weber. Mar. 19. 20 15)
37
ROA.33526-27; ROA.34149-66; see also ROA.29353-56. While on average the
Black candidates supported by Black voters in parish-wide contests received
approximately 86% of Black voter support and faced opposition from white
candidates, no Black candidate ever received more than 13% of white voter support.
ROA.29356. “[I]n a parish-wide election, no black candidate has ever received over
one-third of the overall vote.” ROA.29356.
While the AG argued below that these voting patterns are better explained by
non-racial factors, he has mostly abandoned that argument on appeal. Compare
ROA.29359-62 with AG’s Br. 50-54. The district court emphasized that Defendants’
experts conceded “race is a factor in Terrebonne elections,” and certain non-racial
factors cited by Defendants, such as ability to raise money, are “inextricably
intertwined” with race. ROA.29360-62.
Contrary to the AG’s assertion, party affiliation does not explain the stark
RPV in Terrebonne. Cheryl Carter, a Black woman, ran as a Republican against two
white male Republican candidates in the highly probative 2014 Houma City Court
election; she received minimal support from non-Black voters despite strong support
from Black voters. Compare AG’s Br. 51-52 with ROA.29355. The court did not
clearly err in rejecting Defendants’ purported non-racial reasons for the RPV
patterns. ROA.29359-62.
38
2. Special Circumstances
The AG devotes much of his brief to Juan Pickett’s election to the 32nd_JDC
in an attempt to defeat Plaintiffs’ stark evidence of RPV. But the AG ignores that
the relevant standard is whether “the white majority votes sufficiently as a bloc to
enable it - in the absence o f special circumstances, such as the minority candidate
running unopposed- usually to defeat the minority’s preferred candidate.” Compare
Gingles, 478 U.S. at 51 (citations omitted) (emphasis added) with AG Br. 33; see
also ROA.29352. The district court was required to look at the evidence of how
white voters tend to defeat the minority community’s preferred candidates in
contested bi-racial elections in the absence of special circumstances like Judge
Pickett’s election. ROA.29374-79. The court found that white voters defeated the
candidates preferred by Black voters not only sometimes, but always did.
ROA.29356.
Not only was Judge Pickett’s election uncontested, the district court correctly
found that other special circumstances existed that further undermined its
significance. ROA.29374. The court explained that electoral wins by minority
candidates during the pendency of vote dilution cases have limited probative value
in determining whether at-large voting generally works to dilute minority voting
strength. ROA.29374 (referencing Clark, 21 F.3d at 96, finding it to be a special
circumstance for “an uncontested race that occurred while this litigation was
39
pending” and determining such an election “does not establish that polarized voting
does not exist”). The district court conducted a thorough factual assessment of the
many special features that undermined the probative value of Judge Pickett’s
election including:
• It occurred during the pendency of this litigation, filed in February 2014.
ROA.29375.
• He “was the first black candidate ever to win an at-large, parish-wide
election.” ROA.29375.
• As a political novice, Judge Pickett ran unopposed, which Defendants’
experts admitted was unusual for an open 32nd_JDC seat. ROA.29375-76.
• His “lack of opposition was not only odd because he was running for an
open seat, it was also odd because the evidence showed that he was the
only black judicial candidate [in Louisiana] to run unopposed in a
majority-white district between 1990 and 2014.” ROA.29376.
• He was not clearly the Black community’s candidate of choice, “and so his
win does little to reveal anything about the ability of the black community
to be successful in the current at-large system.” ROA.29377; ROA.29375.
Because Judge Pickett ran unopposed, his name was not on the ballot, and
no votes were cast for him. ROA.29377. No expert in this case conducted
40
a RPV analysis of that election. ROA.29377. His election, thus, does not
show the absence of RPV. ROA.29377.
• He was financially backed by some of the staunchest opponents to district-
based voting for the 32nd_JDC; all of his largest contributions were from
white individuals or businesses, money that flowed in after Plaintiffs filed
this lawsuit. ROA.29377-78; ROA.29007; ROA.29011.
The district court did not clearly err in finding RPV in Terrebonne elections.
C. The District Court Correctly Concluded that Plaintiffs Demonstrated
Under the Totality of Circumstances that Vote Dilution Exists in
32nd_JDC Elections.
After demonstrating the three Gingles preconditions, Plaintiffs showed, based
on the “totality of the circumstances,” as informed by the congressionally-delineated
Senate factors, that at-large voting results in Plaintiffs’ having “less opportunity than
other members of the electorate to participate in the political process and to elect
representatives of their choice.” ROA.29318-19; ROA.29363 (citing Clark, 21 F.3d
at 94).
The district court recognized that a plaintiff need not prove “any particular
number of factors . . . or that a majority of them point one way or the other.”
ROA.29319 (citing Patino v. City o f Pasadena, 230 F. Supp. 3d 667, 676 (S.D. Tex.
2017); see also Gingles, 478 U.S. at 45 (Senate factors are “neither comprehensive
41
nor exclusive”); see also McMillan, 748 F.2d at 1042-47 (finding a §2 violation
where six Senate factors weighed in plaintiffs’ favor).
The district court concluded that Plaintiffs demonstrated seven of the nine
Senate factors (or “SFs”)). The court found Plaintiffs established “overwhelmingly”
the two most important factors: SF 2 (RPV) and SF 7 (lack of Black electoral
success). ROA.29319 (citing Clark, 88 F.3d at 1397); ROA.29367; ROA.29372-82.
The court found Plaintiffs had offered significant and largely unrebutted
evidence in support of the totality of circumstances, crediting the testimony of
Plaintiffs’ experts, Dr. Allan Lichtman and Mr. Cooper. By trial, Dr. Lichtman had
worked for both plaintiffs and defendants in more than 80 voting and civil rights
cases, including in (and for) Louisiana. The Supreme Court cited his work in
LULAC, 548 U.S. at 427, 439, in finding a §2 violation with respect to Texas
congressional redistricting. ROA.29363. Mr. Cooper also provided significant
testimony on the Senate factors. Defendants’ experts were largely mute on the
subject. See AG’s Br. 55-65; ROA.29363.
The district court found that Plaintiffs established:
• SF 1: an extensive history of voting discrimination in Louisiana and
Terrebonne, and a centerpiece of that history has been the use and
maintenance of at-large voting. ROA.29364-67.
42
• SF 2: a stark pattern of RPV in Terrebonne’s judicial and non-judicial
elections. ROA.29367.
• SF 3: multiple election practices for the 32nd_JDC, such as a majority-
vote requirement, division/numbered posts, and large election districts,
enhance the likelihood of discrimination in Terrebonne. ROA.29367-69.
• SF 5: Louisiana and Terrebonne have a history of de jure and de facto
discrimination against Black people in every aspect of economic and social
life; that history has resulted in stark disparities between Black and white
residents of Terrebonne over all important measures of socio-economic
well-being. ROA.29369-72.
• SF 7: there is a “consistent pattern of black electoral defeat over many
years and for many positions.” The special circumstances surrounding
Judge Pickett’s election “do[] not show the lack of vote dilution in this
case,” and Black electoral loss in Terrebonne is better explained by RPV,
and the challenged at-large system, in combination with the above-
mentioned enhancing factors. ROA.29372-82.10
10 The court considered, but did not find persuasive Appellant’s argument that Black electoral
defeat in Terrebonne is because few Black candidates have run and it has a small number o f Black
lawyers. ROA.29379-81 (citing Clark, 88 F.3d at 1398)\ see also McMillan, 748 F.2d 1045 (“[T]he
lack o f black candidates [may well be] . . . a result o f racially discriminatory system .”))
The AG also asserts there is no evidence that any Black lawyer, other than Juan Pickett,
desire to be 32nd_JDC judges. See AG Br. 56 nn. 9 & 12. Not true. Indisputably, Anthony Lewis
ran for the 32nd_JDC seat in 1994, and he and Cheryl Carter ran for the First Circuit Court o f
43
• SF 8: the Black community’s persistence in seeking an opportunity
subdistrict and the Legislature and white judges’ adamant persistence in
thwarting these efforts. ROA.29382-83.
The AG suggests the district court erred by finding Plaintiffs established the
existence of SF 1 based only on Louisiana’s record of discrimination from decades
ago. See AG Br. 55-56. Not true. The court also credited more recent discrimination,
including a 1992 DOJ objection under §5 for vote dilution related to the Parish
Council, and the Supreme Court’s acknowledgement in 1990 that Louisiana failed
to seek preclearance related to the 32nd_JDC and other judgeships. ROA.29366;
ROA.28988-89.
The AG faults Plaintiffs for not proving the existence of racial campaign
appeals (SF 6) or that 32nd_JDC judges carry out their work, treat Black lawyers, or
issue decisions in a racially discriminatory manner. See AG Br. 57, 65. Again,
Plaintiffs are not required to prove every factor or any set number of them. See
ROA.29363 (citing Bone Shirt v. Hazeltine, 461 F.3d 1011, 1022 (8th Cir. 2006),
and NAACP v. Gadsden Cty. Sch. Bd., 691 F.2d 978, 982-83 (11th Cir. 1982), where
courts found vote dilution based on two factors). The AG has cited no case requiring
Appeals and Houma City Court, respectively. ROA.29355. Moreover, the Black comm unity’s
preferred candidate need not be a Black lawyer.
44
Plaintiffs to show that 32nd_JDC judges handed out justice in a racially
discriminatory manner. See AG Br. 57, 62, 65.
D. The District Court Gave Serious Consideration to Louisiana’s
“Linkage” Interest.
The AG argues the district court gave “short shrift” to Clements and
Louisiana’s interest in linking the electoral and jurisdictional base of 32nd_JDC
judges by maintaining at-large voting. AG Br. 57-65. The AG is wrong.
In Clements, this Court held “[a] state’s interest in maintaining” a link
between a judge’s electoral base and jurisdiction “must be weighed in the totality of
circumstances to determine whether a §2 violation exists.” 999 F.2d 831, 868 (5th
Cir. 1993). But, consistent with Supreme Court precedent, this Court rejected the
argument that a state’s linkage interest “must defeat liability in every case, regardless
of the other circumstances.” Id. at 870; see Hous. Lawyers ’ Ass Vz, 501 U.S. 419,427
(1991) (recognizing a state’s linkage “interest does not automatically, and in every
case, outweigh proof of racial vote dilution.”). A state may defeat a §2 claim only i f
it has a “substantial” linkage interest and that interest outweighs evidence of vote
dilution. See Clements, 999 F.2d at 868.
The district court gave serious consideration to Louisiana’s linkage interest as
part of the “totality of circumstances” analysis. The court’s opinion includes
extensive analysis of the issue and acknowledges that Louisiana does have a linkage
interest. ROA.29384. But, after considering the status and history of judicial
45
elections in Louisiana and “given all of the[] facts,” the court correctly held, unlike
Texas’s asserted linkage interest in Clements, that Louisiana’s linkage interest was
not “substantial.” ROA.29384 (citing Clements, 999 F.2d at 868); ROA.29387. In
concluding Louisiana does not have a substantial linkage interest, the court gave five
reasons. The AG’s arguments for why the district court committed error are
meritless.
First, the district court correctly held that the Louisiana Constitution does not
“require that trial court judges be elected at-large” and therefore allows voting by
districts. ROA.29385. The AG responds by misrepresenting the state constitution,
claiming it requires at-large elections for district courts. AG Br. 59. It does not.
Article 5, §14 (on which the AG relies) requires only that Louisiana establish a
district court for each parish served by at least one judge. See La . C o n s t , art V, §14.
Louisiana satisfied this requirement by establishing, among many others, the
32nd_JDC, which has five seats. Notably, in Louisiana—unlike Texas—many of the
state’s other district court judgeships are held by judges who were elected in SMDs
and not at-large. ROA.29386-87.
The AG also incorrectly relies on Article V, § 15(A). That section does not
mandate at-large voting for district courts. It merely provides that, among other
things, “[t]he legislature by law may establish trial courts of limited jurisdiction with
46
parishwide territorial jurisdiction and subject matter jurisdiction which shall be
uniform throughout the state.” La . Const, art. V, § 15(A) (emphasis added).
Louisiana also requires elections by districts for the state Supreme Court and
its intermediate appellate courts. La . Const, art. V, §§4, 9; ROA.33570 n.22. All of
Louisiana’s appellate judges are therefore elected in districts but preside over
broader jurisdictions.
Second, the district court reviewed Clark and this Court’s guidance in
Clements and Prejean and determined that the settlement in Clark “stifled”
Louisiana’s ability to raise any linkage policy arguments it might previously have
had. ROA.29386. In Clements, this Court made clear Louisiana had “abandoned the
link between jurisdiction and electoral base” for judicial elections “to settle
prolonged litigation.” Clements, 999 F.2d at 872, n.33; see also Prejean, 227 F.3d
504, 510-12 (5th Cir. 2000) (“Louisiana might not have foreseen the conclusion of
the LULAC case, but surely it understood that the Supreme Court considered judicial
elections to invoke more complex voting rights problems than legislative elections.
Nevertheless, the state stifled its policy arguments to obtain final preclearance.”)
(emphasis added) (internal quotation marks omitted).
Third, in addition to the districts created as a direct result of Clark, the district
court cited undisputed evidence that Louisiana has also voluntarily proposed and
created majority-minority subdistricts outside of the litigation context. ROA.29386.
47
For example, in 1993, Louisiana created two subdistricts for the: 16th_JDC; Baton
Rouge City Court; and Monroe City Court. ROA.29026 (citing relevant statutes);
see also ROA.33572. In 1994, Louisiana created two subdistricts for the East Baton
Rouge Parish Juvenile and three subdistricts for the Caddo Parish Juvenile courts.
ROA.29027. In 1997, Louisiana created two subdistricts for the Shreveport City
Court. ROA.29027. None of these courts were part of the 1992 Clark settlement.
ROA.29027 (citing Clark, 111 F. Supp. at 469 (identifying the 11 districts in which
this Court found a §2 violation, which did not include the 16th_JDC)); ROA.33569-
70.
Fourth, the district court noted that, excluding Orleans Parish, the majority of
district court judges in Louisiana (106 of 193, or 55%) are elected in sub-districts,
not at-large. ROA.29386-87. While the AG quibbles with this number (arguing for
the first time on appeal it is improper to exclude Orleans Parish), that quibble should
be ignored. AG Br. 60. It is sensible to exclude Orleans, a majority-minority Parish,
given its unique history—relative to Louisiana overall—of electing candidates of
choice before Chisom and Clark. Clark, 725 F. Supp. at 288-89.
In any event, the district court’s point is—unlike Texas or any other state that
has a substantial linkage interest—a very large number of judgeships in Louisiana
are elected from sub-districts, not at-large.
48
Fifth, the district court gave weight to the important report issued by the
Louisiana Task Force on Racial and Ethnic Fairness. The report concluded that
subdistricts were necessary to provide Black electoral opportunity. ROA.29387. The
court also noted that there was no evidence judges elected from subdistricts are less
accountable, less fair, less independent, or otherwise fail to serve all those whom it
has jurisdiction over. ROA.29387.
* * *
The district court correctly recognized that Clements is distinguishable and
Louisiana, unlike Texas, does not have a substantial linkage interest in maintaining
at-large judicial elections, as it has “abandoned the link between jurisdiction and
electoral base” for judicial elections “to settle prolonged litigation.” Clements, 999
F.2d at 872, n.33.
The district court further held, even if Louisiana did have a substantial linkage
interest, it must yield to Plaintiffs’ substantial proof of vote dilution. ROA.29384;
ROA.29387. In Clements, the evidence of vote dilution was only “marginal” for
three Texas counties, as a substantial proportion of minority candidates were elected
in contested elections. ROA.29387 (citing Clements, 999 F.2d at 881-84, 889-91).
Here, by contrast, there is a stark RPV pattern for more than 20 years. ROA.29388.
49
III. THE DISTRICT COURT’S DISCRIMINATORY INTENT FINDING
SHOULD BE AFFIRMED UNDER RULE 52.
The district court’s finding that at-large voting for the 32nd_JDC has
discriminatory results within the meaning of §2 is sufficient to decide this case. But
the court also held the maintenance of that at-large election system has a
discriminatory purpose in violation of §2 and the Constitution.
The district court correctly recognized that “[r]acial discrimination need only
be one purpose, not even a primary purpose” to establish a constitutional violation.
ROA.29388 (citing Brown, 561 F.3d at 433). The court also recognized that the
constitution prohibits the maintenance of an electoral method motivated in part by
racial discrimination regardless of why the electoral method was adopted.
ROA.29320 (citing Rogers v. Lodge, 458 U.S. 613, 622-27 (1982)); see also
McMillan, 748 F.2d at 1040 & n.6 (affirming finding that “the at-large election
system was maintained for a discriminatory purpose” where officials “refus[ed] to
submit to voters a proposed referendum that would change the election system from
at-large to [SMDs]”).
The district court then undertook the “sensitive inquiry into such
circumstantial and direct evidence of intent as may be available” required by
Supreme Court precedent to determine whether racial discrimination was one factor
that motivated the maintenance of at-large elections here. ROA.29321 (citing Village
o f Arlington Heights v. Met. Housing Dev. Corp, 429 U.S. 252, 266 (1977)). The
50
district court found racial discrimination was a motivating factor, and was “unwilling
to accept” the asserted reasons for opposition to district-based voting “were the true
reasons.” ROA.29401-2.
The AG ignores the key evidence the district court relied on in finding a
discriminatory purpose. ROA.29388-403. The AG, therefore, has not established
clear error.
A. The AG’s Complaints About the Evidence Do Not Show Clear Error.
The AG’s argument boils down to a mischaracterization of what the court
considered in making its intentional discrimination finding. The AG contends the
district court simply faulted Louisiana for keeping in place the at-large system used
in other parts of Louisiana. AG Br. 66.11 But the undisputed sequence of events
shows that Louisiana rejected six legislative proposals between 1997 and 2011 to
change the 32nd_JDC electoral method. See ROA.29390-91. The record shows the
justifications offered by legislators and other white officials for rejecting these bills
and opposing an opportunity subdistrict were pretextual and tenuous; further, the
court rejected other post-hoc rationalizations offered by various officials as to why
The A G ’s citations for this argument are inapposite. Hall v. Louisiana, 974 F. Supp. 2d
944 (M .D. La. 2013) does not concern intent, and Ne. Ohio Coal, for the Homeless v. Husted, 837
F.3d 612 (6th Cir. 2016), involves the enactment o f legislation, not whether it was maintained for
a discriminatory purpose.
51
those bills were rejected. The court’s finding that race was “a motivating factor” was
well-supported. ROA.29388-89 (citing Arlington Heights, 429 U.S. at 255-56).
The undisputed evidence is:
1. In 1996, the all-white 32nd_JDC judges requested an additional
judgeship and the Judicial Council (the entity responsible for
recommending judgeships), after conducting a site visit, agreed. White
officials, including the district attorney, supported the request by
introducing HB1399, which would create an at-large elected sixth
judgeship. But after Black community advocates sought that additional
judgeship to be an opportunity subdistrict, HB1399 was tabled.
ROA.29391-92; ROA.29324-25.
2. In 1998, a white local official introduced Senate Bill (“SB”) 166 to
create a sixth (at-large) judgeship. Terrebonne’s Black community
ultimately opposed this bill because it lacked an opportunity subdistrict
and would have diluted the Black vote. The bill passed the Senate but
did not come up for a House vote. ROA.29392; ROA.29325.
3. In 1998, the 32nd_JDC judges again requested an additional judgeship.
But after advocacy by the Black community for an opportunity
subdistrict, the white judges withdrew their request, citing a sudden
reduction in workload as a result of the transfer of cases to the Houma
52
City Court. The district court found that purported justification for this
about-face tenuous and pretextual. ROA.29393-94; ROA.29325.
4. In 1999 and 2001, Louisiana officials rejected three legislative
proposals— SB 1052 (1999), SB968 (2001), and HB1723 (2001). Each
would have created a 32nd_JDC opportunity subdistrict. ROA.29325-
26. White 32nd_JDC judges inserted themselves into the legislative
process to oppose these bills. In 1999, Terrebonne Parish Council
unanimously passed a resolution supporting the creation of an
opportunity subdistrict; however a sitting 32nd_JDC judge, Judge
Ellender, sent a letter to the Senate Judiciary Committee saying it would
“be a waste of taxpayers’ money” to add an additional judgeship.12
ROA.29325-26; ROA.29397. The district court found “this insistence
on no new judgeship to be odd because it goes against the judge’s self-
interest, and they had obviously needed an additional judge in the past.”
ROA.29393-95.
5. Thereafter, Houma’s City Court struggled with its docket, drawing
concern from the Judicial Council and Parish Council. ROA.29396. In
12 That was but one example o f a 32nd_JDC member inserting him self into the legislative
process to oppose an opportunity subdistrict. ROA.29395; RO A.29397; ROA.29400.
Most recently, a 32nd_JDC member, using court letterhead, wrote to a local Terrebonne
delegation member contending “any legislation on this issue is opposed by the State o f Louisiana,
Terrebonne Parish, the legislative delegations for Lafourche and Terrebonne, and the judiciary o f
the 32nd_[JDC].” RO A.29680-81; RO A.29701-02.
53
2003, the Houma City Court Judge and local legislators sought the
creation of a City Court part-time commissioner, but withdrew this
request after Black residents advocated for an opportunity subdistrict
for a new judgeship. ROA.29396-97.
6. In 2007, with a new facility in place, the Houma City Court Judge
requested the creation of a new City Court judgeship but withdrew that
request after Black residents once again advocated for an opportunity
subdistrict; by 2009, a Judicial Council report established the City
Court needed two judges, but did not act to add one, as the Black
community continued to advocate for an opportunity subdistrict.
ROA.29397-98.
7. In 2011, Louisiana officials rejected HB582, to establish an opportunity
subdistrict that would not have displaced any sitting 32nd_JDC judges
and added an additional judgeship; it was supported by eveiy Black
legislator and opposed by the overwhelming majority of white
legislators voting on the bill. ROA.29398-401; ROA.29326;
ROA.29047 ^ 268.
See also ROA.29324-27.
The overall factual pattern revealed:
Local white officials . . . originally wanted an additional judgeship, but
when black advocates requested that the new judgeship be elected from
54
a subdistrict, this request was withdrawn___In 2011, when the request
was not for an additional judgeship, but rather for the rearrangement of
the method of election, the reasons offered in opposition appeared even
more pretextual.
ROA.29401-02.
The district court properly considered this pattern of legislative activity (along
with other substantial evidence) under the Arlington Heights framework, 429 U.S.
at 265-66, including the:
• discriminatory impact of at-large voting for the 32nd_JDC, ROA.29390
(cross-referencing the discriminatory results finding);
• history of voting discrimination, ROA.29390 (cross-referencing the
findings of historical discrimination under the totality of circumstances);
and
• contemporary opposition to district-based voting from Louisiana’s white
officials. The court found their reasons pretexual, including that (a) DOJ
would have objected to subdistricts, when it never had and would more
likely have blocked an additional at-large seat, ROA.29392, and (b)
Terrebonne lacked “qualified” Black lawyers, which, based on “the
extreme RPV pattern” shows that “black and white citizens have a ‘very,
very, different view’ of who is qualified.” ROA.29400-03.
55
B. The District Court Applied the Correct Legal Standards.
The AG’s reliance on Abbott v. Perez, 138 S. Ct. 2305, 2324-25 (2018), to
contend that the Legislature is entitled to a presumption of constitutional good faith
is misplaced. AG’s Br. 66. Abbott does not change the standard for an intent claim
under Arlington Heights, which the district court correctly applied to the evidence.
Abbott relied on Arlington Heights for the intent analysis, and nothing in Abbott
suggests the district court misapplied the law or incorrectly assessed the facts. 138
S. Ct. at 2324-25. This Court should defer to the district court’s factual findings on
intent, which were substantially supported by evidence and largely unrebutted.
IV. THE DISTRICT COURT’S REMEDY WAS APPROPRIATE AND
SHOULD BE AFFIRMED.
A. The District Court’s Remedial Order Was Sound, Supported, and
Within its Equitable Discretion.
After finding “there is clearly a Section 2 violation” and giving the Legislature
and parties “ample opportunity” to remedy the violation, the district court set out to
correct it. ROA.29350; ROA.30522. The court charged the special master with
drawing a map that complied with the court’s liability ruling and “Federal and State
Constitutions and the [VRA].” ROA.30162. The special master evaluated four
potential remedial maps: two maps proposed by Plaintiffs—the Illustrative and
Alternative Plans—and two maps developed by him— Special Master Plans 1 and 2.
ROA.30183. The special master ultimately recommended, and the court adopted, the
56
Special Master’s Plan 2 because it is the easiest to administer and for voters to
recognize (since it is based on the Parish Council local districts). ROA.30193;
ROA.30184; ROA.30532. The court did not abuse its discretion in adopting Plan 2.
The AG accuses the district court’s remedial map of being an unconstitutional
racial gerrymander because purportedly: (a) it does not comply with TRPs; (b) the
court drew the majority-Black District 1 solely with race in mind; and (c) District 1
is not narrowly tailored to serve a compelling state interest because it is not compact.
AG Br. 34-35.13 He is wrong for multiple reasons.
First, as the court was required to remedy vote dilution, the court’s remedial
plan had to consider race. ROA.30181-84; see also Wyche v. Madison Par. Police
Jury, 635 F.2d 1151, 1163 (5th Cir. 1981) (district court “must be mindful of the
impact of a proposed plan on different racial groups.”); Davis, 139 F.3d at 1423 n.19
(“[a]ny remedy designed to alleviate [RPV] is by definition intended to help minority
voters elect their candidates of choice.”); see also Cooper, 137 S. Ct. at 1469.
Second, Plan 2 considered substantially more than race. The special master
independently evaluated all five of the districts in each of the four potential remedial
plans for their compliance with TRPs. ROA.30182-83; ROA.30526-32. He
13 The AG cannot dispute that Plan 2 ’s District 1 is insufficiently numerous because it has a
50.4% any-part Black population, but 49.7% single-race DOJ Black population. A G ’s Br. 35-36.
See Georgia v. Ashcroft, 539 U.S. 461, 473 n. 1 (2003) (where Black voters are the only minority
group at issue, “it is proper to look at all individuals who identify themselves as black”).
57
developed a set of twelve guidelines to evaluate potential remedial maps and make
a recommendation to the court for which to adopt. ROA.30183-86. Those guidelines
reflect the special master’s careful consideration of TRPs, including:
• population equality based on 2010 census population;
• “ [s]hape and compactness of districts” relative to “local geography and
population distribution”;
• “shapes, communities of interest, political subdivisions, and the potential
effectiveness of remedial plans” relative to the Parish Council districts; and
• minimizing precinct splits and respecting communities of interest.
ROA.30183-84.
Third, applying these guidelines, the special master determined that all of the
plans he evaluated, including Plan 2, have a total population deviation under 10%
and, thus, meet the Supreme Court’s guidance with respect to population equality.
ROA.30186; see also Brown v. Thomson, 462 U.S. 835, 842 (1983) (generally, “an
apportionment plan with a maximum population deviation under 10% is consistent
with the principle of [OPOV]”). The small population deviations emphasized by the
AG are well under 10%, (indeed under 5%), and do not indicate that District 1 is
inappropriately underpopulated compared to other districts. AG’s Br. 41-42. The
remedial plan respects population equality principles even though, as the AG
58
acknowledges, the OPOV principle is not required injudicial redistricting but is an
equitable consideration. Id. at 31.
The special master also determined and the court accepted that Plan 2
includes an opportunity subdistrict that is compact based on its shape and inclusion
of areas of Terrebonne that also are included in the opportunity subdistricts for other
locally-drawn districts. ROA.30187-88; ROA.30193; ROA.30528-32. District l ’s
shape is simply not irregular compared to those in Vera or Shaw or others that the
AG highlights in its brief. Compare AG Br. 49 with ROA.30557.
To reach this determination, the special master considered: the district court’s
findings on compactness; statistical measures of compactness; and which
communities are grouped in the majority-minority districts for local bodies that
already are “readily recognizable and functional for the residents of these
communities.” ROA.30186-88; ROA.30528-32; ROA.29337.
The AG emphasizes the special master’s note that “Terrebonne Parish
presents significant challenges regarding population distribution and physical
geography.” AG Br. 41 (referencing ROA.30183). But, far from supporting the AG’s
racial gerrymander argument, this shows the opposite. As the special master
explained, “although the Parish as a whole is a fairly simple shape,” where people
live “is much more irregular.” ROA.30186. “There is a core dense population of
Houma and Bayou Cane, with the remaining population primarily located along a
59
number of highways which connect Houma with outlying areas,” and 99.7% of
Terrebonne’s population lives in one region of the expansive Parish. ROA.30186-
87. Consistent with this, local officials have combined populations in functional
electoral districts in Terrebonne. ROA.30187-88.
The special master considered, and carefully minimized the number of split
precincts. He acknowledged that Plaintiffs’ Illustrative Plan would be more compact
because it split several precincts—to which Defendants objected. ROA.30188;
ROA.29334. To facilitate election administration, the special master prioritized
minimizing split precincts. ROA.30188-89; ROA.30193; ROA.30529. Notably, the
district court credited Mr. Cooper’s trial testimony that compactness and shape can
be affected by that of precincts in a given jurisdiction because demographers take
the shape of precincts as they are and Terrebonne’s precincts can be irregular
because they are merged and split over time, as Defendants’ expert conceded.
ROA.29342-43 & n.171; ROA.28947; ROA.28951; ROA.30188.
The special master also considered whether the court’s remedial plan
maintained communities of interest. ROA.30189-192. He made clear that given the
monopoly of the concentration of population in Houma, any five-district plan would
have to split that city. ROA.30189. He acknowledged the district court’s factual
findings that Black communities in Houma, Shriever, and Gray share common
bonds, socio-economic characteristics, and already are combined into Parish Council
60
and School Board districts. ROA.30190. Ultimately, Plan 2 respects communities of
interest (to a greater degree than the other plans) by combining more communities
already grouped together in districts created for other Parish elections. ROA.30190-
92; ROA.30530-32.
Last, the special master considered the effectiveness of District 1 based on
voter registration and turnout statistics. ROA.30192. As District 1 includes the
population included in the opportunity Parish Council districts, there is a strong basis
for knowing how District 1 may prove effective in providing Plaintiffs with the equal
opportunity to elect their 32nd_JDC candidates of choice. ROA.30192-93.
In sum, the special master considered a wealth of non-racial information to
develop the remedial plan and carefully considered and applied TRPs. Race did not
predominate in the development of Plan 2.
Had it, Fifth Circuit precedent recognizes that compliance with §2 can be a
compelling state interest. Clark, 88 F.3d at 1405 (compliance with §2 of the [VRA]
constitutes a compelling governmental interest); King v. State Bd. o f Elections, 979
F. Supp. 619, 622 (N.D. 111. 1997), a ff’d mem. sub. nom King v. Illinois Bd. o f
Elections, 118 S. Ct. 877 (1988) (affirming “its prior analysis that remedying a
potential violation of or achieving compliance with §2 constitutes a compelling state
interest”); AG Br. 36.
61
The remedial district is narrowly tailored because it is necessary to correct the
§2 violation the Legislature could have but did not fix. King, 979 F. Supp. at 623 (in
assessing whether the challenged was narrowly tailored, deferring to the “court’s
discretion in adopting remedial plans”). This narrow tailoring is demonstrated by the
district court’s findings under Gingles and its totality of circumstances analysis. Id.
at 624.
The trial court did not abuse its discretion in adopting Plan 2.14 ROA.30532.
See Wyche, 635 F.2d at 1163 (“District courts are not denied discretion in adopting
[remedial redistricting] p lans.. . . [BJecause of the almost infinite variety of patterns
such plans may take, appellate courts must and do impart considerable discretion to
trial judges.”); see also North Carolina v. Covington, 138 S. Ct. 2548, 2554 (2018).
V. The Tenth Amendment Does Not Relieve Louisiana of Compliance With
the VRA and Constitution.
The AG’s contention that the district court’s remedial order is itself
unconstitutional and a “violation of the principles of federalism enshrined in the
Tenth Amendment” is unsound. See AG’s Br. 56-59 (relying on distinguishable, out-
of-circuit cases15 to argue the remedy must be consistent with the state’s existing
14 Louisiana’s AG is alone in arguing the impossibility o f drawing a 32nd_JDC opportunity
subdistrict. RO A.30526. The district court and Plaintiffs at the liability phase, the Special Master
and Governor at the remedial phase, and the Legislature between 1996 and 2018— all have shown
its feasibility.
15 In Nipper v. Smith, the court expressed concern about “forcing] on the states a new model
o f government.” 39 F.3d 1494, 1531 ( 1 1th Cir. 1994) (en banc). But subdistricts are not new in
Louisiana. In Milwaukee Branch ofNAACP v. Thompson, the court addresses at-large voting that
62
judicial elections scheme, but, as discussed supra, failing to cite to any authority
requiring the use of at-large judicial elections). As the Supreme Court has explained,
“[i]f a State decides to elect its trial judges,. . . those elections must be conducted in
compliance with the [VRA].” Hous. Lawyers’ Ass ’n, 501 U.S. at 426.16
VI. CONCLUSION
Plaintiffs-Appellees respectfully request the Court affirm the district court’s
ruling.
had not been maintained for discriminatory reasons and recognizes that “gross racial vote dilution”
is sufficient to outweigh a state’s linkage interest. 116 F.3d 1194, 1200 (7th Cir. 1997). Here, at-
large voting for the 32nd_JDC was maintained for a discriminatory reason and substantial proof
o f dilution outweighs any linkage interest. The AG also cites Cousin v. Sundquist, 145 F.3d 818
(6th Cir. 1998), even though that circuit’s categorical rejection o f SM Ds for judicial elections is
contrary to this Court’s holding in Clements. Compare Cousin, 145 F.3d at 826-28, 829
(expressing in dictum “disapproval[al] o f [SM Ds] as a remedy for judicial elections even where
they violate the [VRA]”) with Clements, 999 F.2d at 868 (“substantial proof o f racial dilution”
outweighs a state’s linkage interest and justifies single-member districts even if that purported
state interest is “substantial”).
The AG relies on three cases that do not address §2, two o f which predate its existence.
See Gregory v. Ashcroft, 501 U.S. 452, 455 (1991) (claim under the A ge Discrimination in
Employment Act); Taylor v. Beckham, 178 U.S. 548, 573-74 (1900); Boyd v. Nebraska ex rel.
Thayer, 143 U.S. 135, 161 (1892).
16 The AG attempts to have this Court disavow Supreme Court jurisprudence finding that §2
applies to judicial elections. AG Br. 62-64. But Chisom is the law.
63
Respectfully submitted,
/s / Leah C. Aden
Leah C. Aden
Samuel Spital
Janai S. Nelson
NAACP Legal Defense and
Educational Fund, Inc.
40 Rector Street, 5th Floor
New York, NY 10006
T: (212) 965-2200
laden@naacpldf.org
Michaele N. Tumage Young
NAACP Legal Defense and
Educational Fund, Inc.
700 14th Street NW, Suite 600
Washington, D.C. 20005
T: (202)216-5567
F : (202)682-1312
mtumageyoung@naacpldf.org
Ronald L. Wilson (LSBN 13575)
701 Poydras Street, Ste. 4100
New Orleans, LA 70139
T : (504)525-4361
F : (504)525-4380
cabral2@aol.com
Michael de Leeuw
William A. Lesser
Cozen O’Connor
45 Broadway, 16th Floor
New York, NY 10006
T : (212)908-1131
F: (646) 461-2042
MdeLeeuw@cozen.com
Counsel fo r Appellees
64
mailto:laden@naacpldf.org
mailto:mtumageyoung@naacpldf.org
mailto:cabral2@aol.com
mailto:MdeLeeuw@cozen.com
CERTIFICATE OF COMPLIANCE
1. This brief has been prepared in a proportionally spaced typeface
using Microsoft Word, Times New Roman, 14 point.
2. Exclusive of the table of contents, table of citations, certificate of
compliance and the certificate of service, this Response Brief of Appellee contains
12,982 words.
I understand that a material misrepresentation can result in the Court’s
striking the brief and imposing sanctions. If the Court so directs, I will provide an
electronic version of the brief and a copy of the word of line printout.
/s/ Leah C. Aden
Leah C. Aden
Attorney fo r Appellees
65
CERTIFICATE OF SERVICE
I certify that on November 14, 2019 ,1 electronically filed the foregoing with
the Clerk of the Court for the United States Court of Appeals for the Fifth Circuit by
using the appellate CM/ECF system, which will automatically send email
notification to all counsel of record.
Dated: November 14, 2019
/s/Leah C. Aden
Leah C. Aden
NAACP Legal Defense and
Educational Fund, Inc.
40 Rector Street, 5th Floor
New York, NY 10006
T: (212) 965-2200
F : (212)226-7592
Attorney fo r Appellees
CERTIFICATIONS UNDER ECF FILING STANDARDS
Pursuant to paragraph A(6) of this Court’s ECF Filing Standards, I certify that
(1) required privacy redactions have been made (see 5th Cir. R. 25.2.13); (2) the
electronic submission is an exact copy of the paper document (see 5th Cir. R. 25.2.1);
and (3) the document has been scanned for viruses with the most recent version of a
commercial virus scanning program and is free of viruses.
/s/ Leah C. Aden
Leah C. Aden
NAACP Legal Defense and
Educational Fund, Inc.
40 Rector Street, 5th Floor
New York, NY 10006
T :(212)965-2200
F : (212) 226-7592
Attorney fo r Appellees
67