Case 3:14-cv JJB-SCR Document /13/15 Page 1 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA. Defendants.

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1 Case 3:14-cv JJB-SCR Document /13/15 Page 1 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA TERREBONNE PARISH BRANCH NAACP, et al., v. Plaintiffs, Civil Action. No. 3:14-cv-69-JJB-SCR PIYUSH ( BOBBY ) JINDAL, the GOVERNOR of the STATE OF LOUISIANA, in his official capacity, et al., Defendants. REPLY MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT Plaintiffs, 1 through their undersigned counsel, respectfully submit this Reply Memorandum of Law in Support of their Motion for Summary Judgment ( Motion ) (Doc. 91). Defendants Response, Doc. 129, strings together a number of meritless arguments, none of which demonstrate that there are genuine disputes of material fact regarding Plaintiffs claims under Section 2 of the Voting Rights Act ( Section 2 ) and the U.S. Constitution. Accordingly, summary judgment should be granted in Plaintiffs favor. I. Scope of Summary Judgment Record and Standard of Review 1. In a continuing and desperate attempt to avoid the merits of Plaintiffs case, Defendants rehash their untimely and faulty objection to Plaintiffs use of the supplemental reports of their experts, Dr. Lichtman and Cooper, which Plaintiffs produced before the close of expert discovery. Doc. 129 at 1-4, 13. As set forth in Plaintiffs opposition to Defendants motion to strike those supplemental reports, Defendants arguments are meritless because the 1 Plaintiffs are Terrebonne Parish Branch NAACP, Reverend Vincent Fusilier, Sr., Lionel Myers, Wendell Desmond Shelby, Jr., and Daniel Turner.

2 Case 3:14-cv JJB-SCR Document /13/15 Page 2 of 17 supplemental reports were timely produced, and the record belies Defendants claim of prejudice. See Doc. 111; see also Doc Contrary to Defendants contention, Plaintiffs are not asking this Court to make credibility determinations by simultaneously seeking to exclude Defendants experts and seeking summary judgment. Doc. 129 at 10. As an initial matter, there is nothing improper about Plaintiffs Daubert motions, which were filed pursuant to this Court s order. See Doc. 46 (Daubert motions must be filed simultaneously with summary judgment motions); see also Orthopedic & Sports Injury Clinic v. Wang Labs., Inc., 922 F.2d 220, (5th Cir. 1991) ( [T]he district court may inquire into the reliability and foundation of any expert s opinion to determine its admissibility at summary judgment). Moreover, as Plaintiffs Opening Memorandum makes clear, summary judgment is appropriate notwithstanding the unreliability of the opinions offered by Defendants experts; Defendants evidence fails to create genuine disputes of material fact because it reflects unsubstantiated assertions and unsupported speculation. Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003); see also Stearns Airport Equipment Co. v. FMC Corp., 170 F.3d 518, 531 n.12 (5th Cir. 1999) ( Summary judgment is appropriate when an ill-reasoned expert opinion suggests the court adopt an irrational inference, or rests on an error of fact or law. ); see also, e.g., Doc at 2, 6-7. II. Gingles one 1. Sufficiently Large. Defendants contend that Plaintiffs Illustrative Plan 2 does not meet the numerosity requirement, but concede that District 1 includes a Black voting-age 2 Defendants mischaracterize the record in asserting that Cooper developed a plan [that] creates one single member district for African Americans with the remaining four divisions being elected at large. Doc. 129 at 11. To the contrary, Plaintiffs Illustrative Plan features five single-member districts for electing the five 32 nd JDC members. See Doc at 3-4; Doc

3 Case 3:14-cv JJB-SCR Document /13/15 Page 3 of 17 population ( VAP ) of 50.81% and thus clears the 50% threshold. Doc. 129 at In light of this concession, there is no genuine dispute that Plaintiffs satisfy the numerosity requirement. See Bartlett v. Strickland, 556 U.S. 1, 18 (2009) (holding that a bright-line 50% plus one rule applies to determining numerosity). 2. Geographical Compactness. Defendants contend that the Black VAP is not sufficiently compact to form the majority in a single-member district because the Illustrative Plan does not reflect traditional redistricting principles ( TRPs ). See Doc. 129 at 11-19; see also LULAC v. Perry, 548 U.S. 399, 433 (2006) (holding that Section 2 compactness refers to the compactness of the minority population, not to the compactness of the contested district, and the inquiry should take into account [TRPs] such as maintaining communities of interest and traditional boundaries ). 4 These arguments are meritless based on the Illustrative Plan s consideration of the following TRPs: a. Compactness/shape. Defendants cite the opinions of Dr. Weber and Adelson to argue that District 1, the majority-black district in the Illustrative Plan, is not geographically compact. See Doc. 129 at 15-16, However, as previously explained, Doc at 5-7, neither Dr. Weber nor Adelson ran statistical tests to assess the compactness of District 1 or visually compared District 1 s shape to the shape of existing Louisiana districts. See Doc. 129 at 15-16, 3 Defendants also contend that it is Plaintiffs burden to show the possibility of creating more than the existing number of reasonably compact districts that comply with Gingles. Doc. 129 at 11. Defendants argument is misplaced for multiple reasons, including most critically that there are no existing majority-black districts in Terrebonne for the 32 nd JDC. See Doc. 112 at 18. Furthermore, proportionality is a relevant factor in the totality of circumstances analysis, discussed infra, not the Gingles analysis. See Doc. 129 at 29; see Johnson v. De Grandy, 512 U.S. 997, 1000, 1008, 1014 n.11 (1994) (in assessing the totality of circumstances, noting that proportionality links the number of majority-minority voting districts to minority members share of the relevant population (emphasis added)). 4 Defendants mischaracterize the record in asserting that Mr. Cooper s original report contained nothing about the redistricting principles he used in drafting his proposed plan. Doc. 129 at 13 (emphasis added). Cooper s original report explicitly states that Plaintiffs Illustrative Plan respects traditional redistricting criteria, including one person one vote, compactness, contiguity, respect for communities of interest, and the non-dilution of minority voting strength. Doc

4 Case 3:14-cv JJB-SCR Document /13/15 Page 4 of Accordingly, their unsubstantiated assertions are not sufficient to defeat summary judgment. See Brown, 337 F.3d at 541. Defendants contend that the purportedly convoluted shape of District 1 is the result of a lack of contiguous concentrations of African-American voters within Terrebonne. Doc. 129 at However, as Dr. Weber conceded, there is no requirement that a hypothetical district contain contiguous Black populations. See Doc at 7-8 n.7; see also Ewing v. Monroe County, 740 F. Supp. 417, 419 (N.D. Miss. 1990) (rejecting Dr. Weber s testimony that the concentration of Black residents are non-contiguous and therefore not sufficiently compact to constitute a singlemember district with a majority black [VAP] ). Thus, the opinions of Dr. Weber and Adelson regarding the compactness/shape of District 1 fail to establish a genuine issue of fact. b. Contiguity. Defendants rely on Adelson s report to assert that the Illustrative Plan does not contain contiguous districts. Doc. 129 at 18. This does not create a genuine dispute because Adelson offers no empirical support for his opinion, and all of the record evidence is to the contrary. See Doc at 8. 6 c. Communities of interest. In an effort to remedy Dr. Weber s and Adelson s failure to examine whether Plaintiffs Illustrative Plan respects communities of interest, see Doc at 10, Defendants rely upon the report of Michael Hefner, an expert previously retained by former Defendant, Secretary of State, to assert that the Illustrative Plan does not meet this criterion. See Doc. 129 at 19. Defendants reliance on this testimony is improper because, as this Court 5 Defendants also contend that to the extent that the Plaintiffs relied on the Parish Council and School Board districts for purposes of drafting their own plan... there is a concern that the Council and School Board districts are currently malapportioned. Doc. 129 at 15. Whether those local plans are malapportioned is completely beside the point. Plaintiffs relied on those plans to justify including parts of Houma, Gray, and Schriever in District 1, as those areas are similarly included in the Council and School Board plans, as well as certain Louisiana House and Senate districts. See, e.g, Doc ; Doc Defendants contention that Plaintiffs have claimed that contiguity is not a required redistricting principle is false, and Defendants offer no support for this assertion. Doc. 129 at 18. The record reflects that both of Cooper s reports explicitly identify contiguity as a TRP that he considered. Doc ; Doc

5 Case 3:14-cv JJB-SCR Document /13/15 Page 5 of 17 previously determined, Defendants failed to timely designate Mr. Hefner as their own expert witness. Doc. 70 at 3 n.3. 7 Regardless, Hefner s criticism of District 1 fails to create a genuine issue of fact. Hefner contends that District 1 does not adhere to communities of interest because it joins parts of Schriever, Gray, and Houma together. Doc at However, as noted in Plaintiffs Opening Memorandum, parts of these areas already are joined to form various districts in or around Terrebonne. Doc at 9; see also Doc ; supra n.5. Because Hefner s criticism fails to account for this reality and reflects unsupported speculation, it is insufficient to defeat summary judgment. Brown, 337 F.3d at 541; see also Chen v. City of Houston, 206 F.3d 502, 508 (5th Cir. 2000) (a court is not required to take heed of an ill-reasoned expert opinion at summary judgment). d. Precinct splits. Defendants also complain that Plaintiffs Illustrative Plan splits some precincts. Doc. 129 at 17. However, Defendants point to no expert opinion supporting their argument and instead rely on two declarations from the former and current registrar of voters in Terrebonne, both of whom object to the use of precinct lockouts. Id. 8 This does not create a genuine dispute of fact, however, because the law is well-settled that precincts can be split (and lockouts can be used) to ensure compliance with Section 2, see, e.g., United States v. Village of Port Chester, 704 F. Supp. 2d 411, 439 (S.D.N.Y. 2010) ( [E]lection precincts are not such important political boundaries that they should negate a districting proposal. ), 9 and neither declaration shows that Plaintiffs Illustrative Plan somehow falls outside of the norm when 7 In accordance with this ruling, the Court advised Defendants that they could file a motion, if they so choose, to seek an extension of the deadline to designate expert witnesses. See Doc at 2-3; Doc. 129 at 6 n.3. Defendants have filed such a motion, which Plaintiffs have opposed. Docs. 71, 75. That motion remains pending. 8 For more discussion of lockouts, see Plaintiffs Opening Memorandum, Doc at & n See also La. Att y Gen. Op. No , 2006 WL , at *1 (2006) (noting the order of the U.S. District Court for the Western District of Louisiana directing the redrawing of election districts for the Avoyelles Parish School Board that would allow the minority population to elect a candidate of its choice in three districts and that would requir[e] new lockouts for existing precincts ). 5

6 Case 3:14-cv JJB-SCR Document /13/15 Page 6 of 17 compared to the many other parishes in Louisiana that also have split precincts. See Doc at 11; Doc Racial gerrymander. Defendants contend that there is a genuine dispute as to whether Plaintiffs can satisfy Gingles one because Cooper subordinated TRPs to race (i.e., engaged in racial gerrymandering) in developing Plaintiffs Illustrative Plan. Doc. 129 at 13, There are, however, multiple flaws in Defendants contention, including that: (1) as a matter of law, any argument that Plaintiffs Illustrative Plan is a racial gerrymander is irrelevant at this liability stage of the case, see Clark v. Calhoun County, 88 F.3d 1393, (5th Cir. 1996); and (2) even if this Court were to determine that race predominated in the development of Plaintiffs Illustrative Plan, which it did not, it would survive constitutional scrutiny because it satisfies the compelling governmental interest of remedying illegal vote dilution, see id. at 1405; see also Doc at n.12. III. Gingles two and three 1. Sufficiency of elections analyzed. Defendants contend that Plaintiffs cannot satisfy Gingles two and three because they examined only one 32 nd JDC (endogenous) biracial election. Doc. 129 at This argument mischaracterizes the record given that Dr. Engstrom analyzed seven biracial endogenous and exogenous elections conducted at-large in Terrebonne over a 20- year period, all of which were characterized by racially polarized voting ( RPV ). Doc at This is more than sufficient to establish RPV. See, e.g., Westwego Citizens for Better Gov t 10 In support of this argument, Defendants claim without citing any authority that it is inappropriate to use census block lines to draw districts. Doc. 129 at Defendants argument is contrary to case law. See, e.g., Houston v. Lafayette County, 56 F.3d 606, 611 & n.4 (5th Cir. 1995) (noting with approval plaintiffs explanation that they used existing census block lines for their illustrative plan and reversing district court s determination that plaintiffs did not satisfy Gingles one). 11 Defendants criticism that Plaintiffs should have examined 32 nd JDC elections featuring only white candidates, including elections in which the white candidates ran opposed, Doc. 129 at 21, is meritless. See Westwego Citizens for Better Gov t, 872 F.2d at 1208 n.7 (noting that evidence most probative of [RPV] must be drawn from elections including both black and white candidates ); see also Campos v. City of Baytown, 840 F.2d 6

7 Case 3:14-cv JJB-SCR Document /13/15 Page 7 of 17 v. City of Westwego, 946 F.2d 1109, 1113, 1122 (5th Cir. 1991) (holding that one endogenous election and multiple exogenous elections were sufficient to establish RPV and reversing district court s finding of no vote-dilution as clearly erroneous). 2. Staleness of elections analyzed. Defendants contention that the nd JDC and the 1993 First Circuit Court of Appeal elections are stale is immaterial, given that all of the more recent exogenous biracial elections (from 2008, 2011, 2012, and 2014) demonstrate stark patterns of RPV. Doc. 129 at 20-25; Doc ; see also Westwego Citizens for Better Government v. City of Westwego, 872 F.2d 1201, 1209 (5th Cir. 1989) (plaintiffs may prove RPV by using exogenous elections if the absence of black candidates has created a sparsity of data on [RPV] in purely indigenous elections ); see also id. (rejecting the notion that plaintiffs may never make out a vote dilution claim when there is no evidence from indigenous elections ) Non-Black voter cohesion. Defendants rely upon Dr. Weber s analysis to contend that Plaintiffs can demonstrate that Black voters are usually cohesive (Gingles two), but Plaintiffs cannot demonstrate that the majority votes sufficiently as a bloc to enable it... usually to defeat the minority s preferred candidate (Gingles three). Gingles, 478 U.S. at See Doc. 1240, 1245 (5th Cir. 1988) (holding that the district court was warranted in its focus on those races that had a minority member as a candidate ). Further, contrary to Defendants contention, Doc. 129 at 22, Plaintiffs did discuss in depth why the November 2014 election of Judge Juan Pickett, a Black candidate, to the 32 nd JDC is not material and does not create a genuine issue of fact. As set forth in Plaintiffs Opening Memorandum, Judge Pickett s unopposed election to an open seat following the filing of this lawsuit reflects the quintessential special circumstances that the Supreme Court has recognized fail to undercut a Section 2 claim, particularly given that Judge Pickett is the only Black candidate in the past 24 years to have gone unchallenged to an open seat in an at-large election in a majority-white jurisdiction in Louisiana, when he ran for an unopposed open seat on the 32 nd JDC after Plaintiffs filed this lawsuit. Doc at Defendants argument that there are myriad of contradictions between Dr. Engstrom and his report and testimony in the case of Hall v. Louisiana, No (M.D. La.), is meritless. Doc. 129 at 27. Defendants fail to specify a single so-called contradiction. See id. In any event, Defendants argument regarding the staleness of the nd JDC and 1993 Court of Appeal elections does not create a genuine dispute of material fact as explained supra. And Defendants attempt to challenge Plaintiffs use of exogenous elections to prove RPV is contrary to binding precedent. See Westwego Citizens for Better Gov t, 872 F.2d at

8 Case 3:14-cv JJB-SCR Document /13/15 Page 8 of at Defendants argument ignores multiple reasons why Dr. Weber s analysis does not create a genuine dispute, including that: (1) Dr. Weber and Dr. Engstrom used the same statistical method to analyze the same set of elections, and they produced essentially the same statistical results; and (2) Dr. Weber s opinion that some of these elections do not feature RPV reflects the application of a flawed rule that he created and that has been repeatedly rejected by federal courts as contrary to Gingles and otherwise devoid of social science support. See Doc at IV. Totality of Circumstances 1. Senate Factor 1 (History of Voting Discrimination in Louisiana and Terrebonne). Defendants concede Louisiana s segregationist and discriminatory past, but nonetheless argue that this factor does not weigh in Plaintiffs favor. Doc. 129 at Defendants contentions are identical to those raised in support of their cross-motion for summary judgment, Doc at 5, and are meritless for the reasons set forth in Plaintiffs response to that cross-motion, see Doc. 112 at 11-13, as well as in Plaintiffs Opening Memorandum in support of this Motion, Doc at 28-29, In particular, Dr. Weber s own data shows that, to this day, Black voters register and turn out to vote at rates lower than white voters in Terrebonne, demonstrating the continuing impact of this history of discrimination on Black political participation in Terrebonne. Doc at 28-29, Senate Factor 2 (Partisanship and RPV in Terrebonne). Defendants attempt to rebut Plaintiffs proof of RPV by asserting that partisanship, and not race, accounts for the divergent voting patterns among minority and white citizens in Terrebonne. Doc. 129 at 26-27, Defendants erroneously contend that Plaintiffs believe that they only have the burden of establishing Black voter cohesion under Gingles two. Doc. 129 at 26. However, Defendants do not and cannot cite anything to support that contention because Plaintiffs have never suggested that their burden does not include establishing Gingles three. 8

9 Case 3:14-cv JJB-SCR Document /13/15 Page 9 of 17 However, the record is devoid of evidence that indisputably proves this conjecture. LULAC v. Clements, 999 F.2d 831, 850 (5th Cir. 1993) (en banc). Defendants cite the opinions of two of their experts, Dr. Weber and Beychok. Doc. 129 at 26-27, However, neither conducted any statistical or systematic analysis to assess the role of partisanship as opposed to race in Terrebonne elections. See Doc at 31; see also Doc at 198:19-22 ( I didn t include party as a factor) (Beychok Dep.). Moreover, the record indisputably demonstrates that Black candidates in Terrebonne are consistently defeated in at-large elections regardless of their party affiliation. Doc at Defendants theory of partisanship reflects a scintilla of evidence that is insufficient to defeat summary judgment. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). 3. Senate Factor 5 (Discrimination in Areas of Life Impacting Political Participation). Defendants do not dispute the stark socioeconomic disparities between Black and white residents in Terrebonne, but insist that there are no lingering effects on Black political participation. Doc. 129 at As set forth above, and discussed in detail in Plaintiffs Opening Memorandum, Dr. Weber s own data confirms the effects of discrimination on Black political participation in Terrebonne. See Doc at 28-29, Senate Factor 7 (Lack of Black Electoral Success). Defendants contend that the lack of Black lawyers in Terrebonne explains the lack of Black judges elected to the 32 nd JDC. Doc. 129 at While Defendants are correct that the number of Black lawyers is a relevant 14 Defendants also attempt to rely on the expert opinion of an individual designated by the former Defendant Secretary of State, Ms. Romig. Doc. 129 at 30. Plaintiffs object to the use of such testimony given Defendants failure to timely designate her as an expert witness. See Doc. 75. Contrary to Defendants suggestion, Doc. 129 at 6 n.3, Plaintiffs made clear in their Opening Memorandum that Plaintiffs use of certain factual portions of Ms. Romig s report in support of their motion for summary judgment does not constitute a waiver of any objection to Defendants use of Ms. Romig as an expert witness. See Doc at 39 n Defendants similarly contend that the lack of Black candidates for judicial elections in Terrebonne explains the lack of biracial endogenous elections for examining RPV in Terrebonne. Doc. 129 at

10 Case 3:14-cv JJB-SCR Document /13/15 Page 10 of 17 consideration, see LULAC, 999 F.2d at 865, this contention does not raise a genuine dispute in this case for multiple reasons. First, following LULAC, the Fifth Circuit has adhered to its recognition that the fact [t]hat few or no black citizens have sought public office in the challenged electoral system does not preclude a claim of vote dilution. Clark, 88 F.3d at 1398 (citing Westwego Citizens for Better Gov t, 872 F.2d at 1208 n.9). This reflects the practical reality that the lack of black candidates [may be] a likely result of a racially discriminatory system. McMillan v. Escambia County, 748 F.2d 1037, 1045 (5th Cir. 1984); see also Westwego Citizens for Better Gov t, 946 F.2d at 1113, 1122 (holding that vote dilution was shown, even though only one Black candidate had ever run for the office in question). 16 Second, contrary to Defendants unsubstantiated contention, the record reflects that there are many Black attorneys in Terrebonne. Compare Doc. 129 at 32 with Doc at 33:17-34:17 (Lewis Dep.) (identifying Black attorneys in Terrebonne, including some that have been practicing longer than Judge Pickett); Doc at 183:10-190:12; 224:2-19 (Boykin Dep.) (identifying Black attorneys in Terrebonne); Doc at 39:11-40:5 (Shelby Dep.) (same); Doc at 29:8-17; 56:25-57:4 (Myers Dep.) (same). This is not a case where minority lawyers disproportionately [have] serve[d] as judges. Doc. 129 at 32 (quoting LULAC, 999 F.2d at 865). Relying upon the report of Beychok, Defendants also suggest that purportedly race-neutral factors (such as whether Black candidates campaigned well) explain Black electoral loss. Id. at In raising this argument, Defendants fail to address the multiple reasons why this contention does not create a genuine issue of fact, including that Beychok s testimony is unreliable and, therefore, inadmissible. See Doc at Defendants reliance on Mallory v. Ohio, 173 F.3d 377 (6th Cir. 1999), is misplaced because the Sixth Circuit expressly rejected Fifth Circuit precedent on this issue. See id. at 385; Doc. 129 at 21. Moreover, the record in that case included numerous instances in which African-American candidates were elected with the significant support, sometimes even by a majority, of Caucasian voters. 173 F.3d at 383. By contrast, the record here indisputably demonstrates that, due to white opposition, Black candidates have never won a contested at-large election in Terrebonne, and that this has had a chilling effect on the willingness of Black individuals to run for atlarge elected office. See, e.g., Doc at 70:22-71:4; 129:25-130:21 (Lewis Dep.); see generally Doc

11 Case 3:14-cv JJB-SCR Document /13/15 Page 11 of 17 Indeed, prior to this lawsuit, no Black candidate had ever served as a judge on the 32 nd JDC in the history of that court. See Doc Third, this lawsuit seeks to ensure that Black voters have the opportunity to elect their preferred judicial candidates, regardless of their race. See, e.g., Doc. 112 at 16 n.17; Doc at 63:18-64:5 (Shelby Dep.); see also Lewis v. Alamance County, 99 F.3d 600, 607 (4th Cir. 1996) ( [A] minority-preferred candidate may be a non-minority, just as a minority candidate can be the preferred candidate of the voters of the majority s race ); Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d 1103, 1125 (3d Cir. 1993) (noting that there may be majority candidates who truly may be the minority community s representative of choice ) Senate Factor 9 (Tenuousness) and the Alleged Linkage Interest. Defendants invoke the Fifth Circuit s decision in LULAC, a Texas case, to assert that judicial subdistricts are disfavored because they break the link between the electoral base and the jurisdiction of the [judge]. Doc. 129 at 7-10, (quoting LULAC, 999 F.2d at 873). 18 In LULAC, the Fifth Circuit held that [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 at 868. If the state s interest is substantial, Section 2 is violated only if there is substantial proof of racial dilution. Id. Defendants reliance on LULAC is unpersuasive for multiple reasons. 17 That the Voting Rights Act protects minority voters right to elect representatives of their choice 52 U.S.C (b), regardless of the candidates race is not inconsistent with the Fifth Circuit s holding that, for purposes of assessing the presence of RPV, the focus should be on biracial elections. See supra notes 11, 15. Indeed, experience... demonstrate[s] that minority candidates will tend to be [the] candidates of choice among the minority community. Jenkins, 4 F.3d at Defendants also rely on Cousin v. Sundquist, 145 F.3d 818 (6th Cir. 1998), for the proposition that judicial subdistricts are disfavored. Doc. 129 at 7. However, that decision is not binding on this Court, and the Sixth Circuit s categorical rejection of single-member districts for judicial elections is contrary to the Fifth Circuit s more nuanced holding in LULAC. Compare Cousin, 145 F.3d at , 829 (expressing in dictum disapprov[al] of single-member districting as a remedy for judicial elections even where they violate the Voting Rights Act ), with LULAC, 999 F.2d at 868 (holding that substantial proof of racial dilution outweighs a state s linkage interest and justifies single-member districts even if that purported state interest is substantial ). 11

12 Case 3:14-cv JJB-SCR Document /13/15 Page 12 of 17 First, Defendants nowhere suggest in their Response that Louisiana, like Texas, has a substantial interest in maintaining a link between a judge s electoral base and jurisdiction. Doc. 129 at 7-10, This is significant because the mere assertion of a linkage interest is insufficient to defeat a Section 2 claim. See Houston Lawyers Ass n v. Tex. Attorney General, 501 U.S. 419, 427 (1991) ( [T]hat interest does not automatically, and in every case, outweigh proof of racial vote dilution. ); LULAC, 999 F.2d at 870 (rejecting Texas s argument that the linkage interest must defeat liability in every case, regardless of the other circumstances ). Instead, a state may defeat a Section 2 claim only if it demonstrates a substantial linkage interest. See LULAC, 999 F.2d at 868. Defendants mere contention that Louisiana has some sort of linkage interest without any suggestion or evidence in support that it is substantial is insufficient to defeat Plaintiffs claims. See id. Moreover, Defendants assertion that Louisiana has a linkage interest is tenuous at best. See Doc at As this Court observed in Clark v. Roemer, [i]t is abundantly clear that the State of Louisiana has repeatedly divided judicial districts into smaller districts. 777 F. Supp. 471, 480 (M.D. La. 1991); see also id. at 479 (holding, accordingly, that no such vital state interest precludes a finding of Section 2 violations ). Defendants concede that after Clark, Louisiana created subdistricts in the districts where this Court found Section 2 violations. Doc. 129 at 9. Since then, and following LULAC, Louisiana has continued to create various judicial subdistricts. See, e.g., Consent Judgment, Williams v. McKeithen, No (E.D. La. Oct. 31, 2007), ECF No. 47 (referencing Act 261 of 2007, which establishes a majority-black subdistrict in Jefferson Parish for electing judges to the Fifth Circuit Court of Appeal, First District). The State s own actions refute any argument that there is any actual linkage interest. Clark, 777 F. Supp. at

13 Case 3:14-cv JJB-SCR Document /13/15 Page 13 of 17 Second, even assuming that Defendants have shown that Louisiana has a substantial linkage interest, which they have not, the record reflects indisputable and substantial proof of racial dilution that outweighs any such interest. LULAC, 999 F.2d at 868. The two most important facts in determining whether proof of dilution outweighs a state s linkage interest are: (1) the willingness of the racial or ethnic majority... to give their votes to minority candidates and (2) the ability of minority voters to elect candidates of their choice even when opposed by most voters from the majority. Id. at 876. Here, the record demonstrates beyond dispute that: (1) an average of only about 7 to 8 percent of non-black voters have been willing to support Black candidates in Terrebonne elections over a 20-year period and regardless of the office at issue or the party affiliation of the Black candidate; and (2) due to this opposition, no Black candidate who has faced opposition has ever been elected to the 32 nd JDC or to any other at-large elected position in Terrebonne, again regardless of the Black candidate s party affiliation. Doc at 16, IV. Intentional Discrimination As explained in Plaintiffs Opening Memorandum, the record demonstrates beyond dispute that Louisiana has maintained at-large voting for the 32 nd JDC because of its dilutive effect on Black voting strength in Terrebonne. Doc at Notwithstanding this record, 19 These undisputed facts set this case far apart from LULAC, where the Fifth Circuit held that marginal proof of vote dilution in three counties was insufficient to outweigh Texas s substantial linkage interest. LULAC, 999 F.2d at 877. In each of those counties, a substantial proportion of minority candidates were able to win elections. See id. at (Black-preferred candidates prevailed in 17 of 45 contested elections analyzed in Harris County, and thus Black voters could... repeatedly elect candidates of their choice ); id. at (Blackpreferred candidates prevailed in 4 of 9 contested elections analyzed in Tarrant County, underscoring consistent and substantial success of minority-preferred candidates ); id. at (Hispanic-preferred candidates prevailed in 4 of 12 elections studied, demonstrating that Hispanic voters are plainly a potent political force in Bexar County). As set forth above, no Black candidate who has faced opposition has been elected to an at-large position in Terrebonne. Thus, Defendants argument that a majority-black single-member district in Terrebonne would perversely lessen minority influence on the 32 nd JDC is completely misguided. Doc. 129 at 9 (quoting LULAC, 999 F.2d at 873). Given the indisputably dilutive effect of at-large voting, there is no question that a majority-black district would only work to empower Black voters in Terrebonne and protect their right to elect their preferred candidates of choice to the 32 nd JDC. 13

14 Case 3:14-cv JJB-SCR Document /13/15 Page 14 of 17 Defendants advance three arguments to suggest that summary judgment on Plaintiffs claims of intentional discrimination is inappropriate. Doc. 129 at All are meritless. 1. Defendants rehash their argument that they are not the proper defendants. Doc. 129 at 4-6, Defendants made this assertion in their separate motion for judgment on the pleadings and their cross-motion for summary judgment, Doc at 4-6; Doc at 17-18, and this contention is unpersuasive for the reasons set forth in Plaintiffs oppositions to those motions. Doc. 104 at 6-7; Doc. 112 at 17 n.18, Pursuant to this Court s order, Plaintiffs also will file a supplemental memorandum on this issue. Doc Defendants argue that the motivations of the Louisiana Legislature is a question of fact that they dispute, and that accordingly, summary judgment is inappropriate. Doc. 129 at 36. However, Defendants offer no evidence to cast doubt, much less contradict, the substantial record of intentional discrimination chronicled by Dr. Lichtman. See id.; see generally Doc Having offered no evidence to defeat Plaintiffs purpose claims, Defendants cannot avoid summary judgment. See Little, 37 F.3d at 1075 (summary judgment cannot be defeated by some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence (internal citations and quotation marks omitted)). 3. Finally, Defendants reiterate their contention, also made in their cross-motion for summary judgment, that there is no evidence that Defendants possessed the requisite showing of intentional discrimination, namely willful discrimination by the Defendants in the carrying out their official duties. Doc. 129 at 37; Doc at 18. This contention is meritless for the 20 For a number of reasons explained in detail in separate pleadings, Defendants cannot credibly maintain that they are not the proper defendants, including the fact that they concede that they have been sued in their official capacities, and as such this suit is functionally against the state of Louisiana. See Doc. 78 at 2 (citing Hafer v. Melo, 502 U.S. 21 (1991)). In their Response, Defendants attempt to use this concession to assert that it justifies their use of the expert reports of the former Defendant, Secretary of State, even though they failed to timely designate those experts as their own. Doc. 129 at 6 & n.3; see also Doc. 71. Plaintiffs continue to oppose Defendants use of those experts reports for the reasons stated in their opposition to Defendants request. Doc. 75; see also supra n

15 Case 3:14-cv JJB-SCR Document /13/15 Page 15 of 17 reasons set forth in Plaintiffs opposition to Defendants cross-motion, including that: (1) Defendants cite no authority for the proposition that the inquiry into discriminatory intent must be this granular; and (2) ample record evidence demonstrates that the Governor and Attorney General have demonstrated such insensitivity to the rights of [Terrebonne s] Black residents that it can only be explained as a conscious and willful effort on their part to maintain the discriminatory at-large electoral method for the 32 nd JDC. Lodge v. Buxton, 639 F.2d 1358, 1377 (5th Cir. 1981), aff d sub nom., Rogers v. Lodge, 458 U.S. 613 (1982). Doc. 112 at CONCLUSION For the reasons set forth above, and in Plaintiffs Opening Memorandum, Plaintiffs Motion for Summary Judgment should be granted. Respectfully submitted this 12th day of October, /s/ Leah C. Aden Leah C. Aden* ** Victorien Wu* Natasha M. Korgaonkar* Deuel Ross* NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 40 Rector Street, 5th Floor New York, NY Telephone: (212) Facsimile: (212) laden@naacpldf.org vwu@naacpldf.org nkorgaonkar@naacpldf.org dross@naacpldf.org *ADMITTED PRO HAC VICE **TRIAL ATTORNEY Ronald L. Wilson (LSBN 13575) 701 Poydras Street, Suite 4100 New Orleans, LA (fax) 15

16 Case 3:14-cv JJB-SCR Document /13/15 Page 16 of 17 Marshall Taylor Victor Goode Of Counsel NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE 4805 Mt. Hope Drive Baltimore, MD Telephone: (410) Counsel for Plaintiffs 16

17 Case 3:14-cv JJB-SCR Document /13/15 Page 17 of 17 CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing Reply Memorandum of Law in Support of Plaintiffs Motion for Summary Judgment with this Court using the CM/ECF system, which provides notice of filing to all counsel of record. /s/ Leah C. Aden LEAH C. ADEN NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 40 Rector Street, 5th Floor New York, NY (212) (212) (fax) Attorney for Plaintiffs 17