No IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. TERREBONNE PARISH BRANCH NAACP, et al., Plaintiffs-Appellees,

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1 Case: Document: Page: 1 Date Filed: 10/13/2017 No IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT TERREBONNE PARISH BRANCH NAACP, et al., Plaintiffs-Appellees, v. PIYUSH ( BOBBY ) JINDAL, the GOVERNOR of the STATE OF LOUISIANA, in his official capacity, et al., Defendants-Appellants. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA DEFENDANT-APPELLANTS RESPONSE TO PLAINTIFF-APPELLEES MOTION TO DISMISS Elizabeth Murrill (La. Bar Roll No ) Angelique Duhon Freel (La. Bar Roll No ) Madeline S. Carbonette (La. Bar Roll No. 3873) Jeffrey Wale (La. Bar Roll No ) Assistant Attorneys General Louisiana Department of Justice Civil Division P. O. BOX Baton Rouge, Louisiana Telephone: (225) Facsimile: (225) freela@ag.louisiana.gov

2 Case: Document: Page: 2 Date Filed: 10/13/2017 carbonettem@ag.louisiana.gov walej.@ag.louisiana.gov Jason Torchinsky (VSB 47481) Shawn Toomey Sheehy (VSB 82630) Steven P. Saxe (CO 49180) Phillip M. Gordon (TX ) HOLTZMAN VOGEL JOSEFIAK TORCHINSKY PLLC 45 N. Hill Drive, Suite 100 Warrenton, VA Telephone: (540) Facsimile: (540) jtorchinsky@hvjt.law ssheehy@hvjt.law spsaxe@hvjt.law pgordon@hvjt.law

3 Case: Document: Page: 3 Date Filed: 10/13/2017 This Court should reject Plaintiffs Motion to Dismiss because the district court s opinion and order is effectively an injunction. This Court therefore has jurisdiction over the appeal pursuant to 28 U.S.C. 1292(a). Defendants- Appellants, Jeff Landry, in his official capacity as Attorney General of Louisiana, and John Bel Edwards, in his official capacity as Governor of Louisiana, respectfully request that this court deny Plaintiffs-Appellees Motion to Dismiss this appeal. The district court s ruling and scheduling order effectively enjoin Defendants from using the existing at-large voting system in the 32nd Judicial District Court ( 32nd JDC ). See Ruling, Terrebonne Parish Branch NAACP v. Jindal [hereinafter Terrebonne], No JJB-EWD, 2017 U.S. Dist. LEXIS , at 2 (M.D. La. Aug. 17, 2017) (Doc. 289); Minute Entry, Sept. 12, 2017 (Doc. 297). The practical effect of the district court s ruling and scheduling order is an injunction, which is appealable as of right under 28 U.S.C. 1292(a) as well as the Supreme Court s holding in Carson v. Am. Brands Inc., and its progeny. 450 U.S. 79, 83 (1981), and the Supreme Court s recent action in Abbott v. Perez. See Abbott v. Perez, No. 17A225, 2017 U.S. LEXIS 4434 (U.S. Sept. 12, 2017); Abbott v. Perez, No. 17A245, 2017 U.S. LEXIS 4435 (U.S. Sept. 12, 2017). Therefore,

4 Case: Document: Page: 4 Date Filed: 10/13/2017 this Court should deny the motion and permit briefing on the merits to proceed in accordance with the Court s usual schedule. PROCEDURAL BACKGROUND On February 3, 2014, Plaintiffs filed a complaint in the United States District Court for the Middle District of Louisiana alleging violations of the Fourteenth and Fifteenth Amendments to the United States Constitution and Section 2 of the Voting Rights Act of Compl. at 1 (Doc. 1). The Plaintiffs claim that the current method of electing judges to the 32nd JDC violates the statutory and constitutional provisions cited above. However, nowhere in the Complaint did they identify the specific laws in Louisiana that they consider unconstitutional. See Compl. (Doc. 1). The Plaintiffs sued three state Defendants all in their official capacities: Bobby Jindal, Governor of Louisiana; James D. Buddy Caldwell, Attorney General of Louisiana; and Tom Schedler, Secretary of State of Louisiana. Id at 1. 1 The parties engaged in extensive discovery and motion practice. On May 7, 2017, the Plaintiffs filed a motion to dismiss the Secretary of State. The district court granted the motion on May 11, 2017, without any input from the remaining parties. See Mot. to Dismiss, May 11, 2015 (Doc. 68); Order, 1 Since the filing of this case, Louisiana has elected a new Attorney General and new Governor, the current defendants in this case. 2

5 Case: Document: Page: 5 Date Filed: 10/13/2017 May (Doc. 69). This is despite the Plaintiffs themselves going to great lengths to argue that the Secretary of State is a necessary party. See Pls. Mem. in Opp. to Sec. of States Mot. to Dismiss (Doc. No. 22). Confusingly, the district court previously ruled, in part, that the Secretary of State has a sufficiently personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presenation of issues on which the court so largely depends for illumination of difficult constitutional questions. Ruling at 7, July 21, 2014 (Doc. 32) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). On March 13, 2017, the United States District Court for the Middle District of Louisiana conducted an eight-day bench trial. Following the trial, the parties submitted proposed findings of facts and conclusions of law and responses to each other s post-trial briefing. Pls. Prop. Findings of Fact & Conc. Of Law (Doc. 284); Defs. Prop. Findings of Fact & Conc. Of Law (Doc. 285); Pls. Response, June 19, 2017 (Doc. 287); Defs Response, June 19, 2017 (Doc. 288). On August 17, 2017, the district court issued a liability ruling in favor of Plaintiffs. Terrebonne (Doc. 289). The court found the 32nd JDC in violation of the Voting Rights Act and the Fourteenth and Fifteenth Amendments to the United States Constitution. Id. at 91. In finding the at-large voting system in the 32nd JDC unconstitutional the court found that the current at-large system in Terrebonne 3

6 Case: Document: Page: 6 Date Filed: 10/13/2017 Parish met the Gingles preconditions and was a result of discriminatory intent. Id. at 76; see Thornburg v. Gingles, 478 U.S. 30 (1986). On September 12, 2017, the district court held a status conference. At this status conference the district court issued a scheduling order, as recorded in the CM/ECF Minute Entry: The defendants apprised the court they will file their motion requesting leave to file an Interlocutory Appeal this week. The plaintiffs will have 10 days to file an opposition. Within 40 days, the plaintiffs may file a proposal regarding the appropriate remedy for the court and legislature to take. The proposal shall be limited to 30 pages. The defendants will have 30 days to file a response which shall be limited to 30 pages. Minute Entry, Sept. 12, 2017 (Doc. 297) (emphasis added). Not contained within the district courts Minute Entry is the fact that Plaintiffs, despite seemingly contradictory statements in their Motion to Dismiss, advised the court that they would likely seek special elections in Terrebonne Parish in Aff. of Freel 9 (attached hereto as Exhibit 1). Later that very same day, the Supreme Court of the United States in a 5-4 vote ordered the stay of proceedings in Abbott v. Perez, No. 17A225, 2017 U.S. LEXIS 4434 (U.S. Sept. 12, 2017); Abbott v. Perez, No. 17A245, 2017 U.S. LEXIS 4435 (U.S. Sept. 12, 2017) a redistricting case on direct appeal from a three-judge panel of the Western District of Texas. The Defendants in Perez, just like in this case, sought an appeal and stay of a ruling where the precise remedy 4

7 Case: Document: Page: 7 Date Filed: 10/13/2017 was not yet developed under the theory that the practical effect of the district courts actions was effectively an injunction and therefore could be appealed. Six days later, based in part on the Supreme Court s grant of a stay in Perez, Defendants filled a Notice of Appeal. Notice of Appeal (Doc. 303). Defendants argue that the district court s ruling and scheduling order have the practical effect of an injunction and therefore are appealable under 28 U.S.C. 1292(a). See id. Defendants also moved to stay the district courts proceedings while this appeal is pending. Defs. Mot. for Stay (Doc. 311) That motion is currently pending before the district court for decision. ARGUMENT I. The District Court s Opinion and Order Have the Practical Effect of an Injunction Therefore Vesting this Court With Jurisdiction. [T]he Supreme Court has held that interlocutory orders injunctive in effect are appealable under 1292(a)(1) where the litigant can show that the order might have a serious, perhaps irreparable, consequence, and that the order can be effectively challenged only by immediate appeal. Clay Cnty. Bank v. Culton, 111 F.3d 92, 93 (11th Cir. 1997) (quoting and citing Carson, 450 U.S. at 83-84). Other courts have noted that which the Supreme Court has appeared to tacitly endorse in Perez: [t]he Carson requirements also do not apply to district court 5

8 Case: Document: Page: 8 Date Filed: 10/13/2017 orders which have the practical effect of granting or denying an injunction if such orders go to the merits of a case. I.A.M. Nat l Pension Fund Ben. Plan A v. Cooper Industries, Inc., 789 F.2d 21, n. 3 (D.C. Cir. 1986) (emphasis added); see also id. ( Such injunctive orders are immediately appealable without a showing of irreparable harm if they affect predominantly all of the merits of the case. ) (quoting Center for Nat l Security Studies v. CIA, 711 F.2d 409, (D.C. Cir. 1983)); Abbott v. Perez, No. 17A225, 2017 U.S. LEXIS 4434 (U.S. Sept. 12, 2017); Abbott v. Perez, No. 17A245, 2017 U.S. LEXIS 4435 (U.S. Sept. 12, 2017). The practical effect of the district court s ruling and scheduling order constitute an injunction that prevents Louisiana from holding judicial elections for the 32nd JDC under its current map. The district court held that at-large voting for the 32nd JDC deprives black voters of the equal opportunity to elect candidates of their choice in violation of Section 2 [of the Voting Rights Act], and it has been maintained for that purpose, in violation of Section 2 and the United States Constitution. Terrebonne at 2 (Doc. 289). Additionally, the district court ordered in the September 12th Status Conference that the Plaintiffs-Appellees ( Plaintiffs ) should file a proposal regarding the appropriate remedy for the court and legislature to take. Minute Entry, Sept. 12, 2017 (Doc. 297). The scheduling order alters the current state of affairs by requiring the Plaintiffs and the State to 6

9 Case: Document: Page: 9 Date Filed: 10/13/2017 construct a remedy an action that inherently includes a reformulation and alteration of the current district and, as Plaintiffs readily admit, it is the preference of the district court to defer to the Louisiana Legislature, in the first instance, to propose a remedy for the existing violation. 2 Appellees Mot. to Dismiss 13, Terrebonne Parish Branch NAACP v. Jindal, No (5th Cir. filed Sept. 18, 2017) (Doc ); see Minute Entry (Doc. 297). It is difficult to read the scheduling order and not conclude that its plain meaning is a directive for the Louisiana Legislature to act based on the district court s ordered briefs. Indeed, as Plaintiffs themselves state, any other interpretation would be to invite the unwelcome obligation... of the federal court to devise and impose a reapportionment plan pending later legislative action. Wise v. Lipscome, 437 U.S. 535, 540 (1978) (internal quotations and citations removed); see also Appellees Mot. to Dismiss 13 (Doc ). This will effectively alter an at-large judicial election system that has been in place since at least See Clark v. Roemer, 751 F. Supp. 586, 588 (M.D. La. 1990). This Court has jurisdiction to review the district court s opinion and scheduling order because taken together 2 It is crucial to note at this juncture that the Louisiana Legislature is not a party to this proceeding and it is unclear how or why the Plaintiffs or the district court expects the Legislature to act, unless it is the position of the Plaintiffs that the district court has given, what can only be termed, a de facto order to draw new maps? In any instance, the fact that the district court expects the Legislature to move forward with a proposal gives credence to Defendant- Appellant s argument that the practical effect of the ruling and scheduling order is an interlocutory injunction despite never using the words order or injunction. 7

10 Case: Document: Page: 10 Date Filed: 10/13/2017 they constitute an injunction, and federal law authorizes a direct appeal to this Court. 28 U.S.C. 1292(a). The fact that the court did not use the words order or injunction in its ruling or scheduling order is not the dispositive factor when determining whether to authorize a direct appeal under 28 U.S.C. 1292(a). The Supreme Court has made clear that it is the practical effect of the trial court s actions not certain magic words that are relevant for such an analysis. Carson v. Am. Brands Inc., 450 U.S. 79, 83 (1981). Other courts have consistently applied Carson in holding that [e]ven if an order does not by its terms grant or deny a specific request for an injunction... the order may still be appealable if it has the practical effect of doing so. Salazar v. District of Columbia, 671 F.3d 1258, (D.C. Cir. 2012); see also Shanks v. Dallas, 752 F.2d 1092, 1095 (5th Cir. 1985); Thomas v. School Bd. of St. Martin Parish, 756 F.3d 380, 384 (5th Cir. 2014); Etuk v. Slattery, 936 F.2d 1433, 1440 (2d Cir. 1991). [I]f the order grants part of the relief requested by the claimant, the label put on an order by the district court does not prevent the appellate tribunal from treating it as an injunction. Cohen v. Bd. of Trustees, 867 F.2d 1455, 1466 (3rd Cir. 1989); see also Tokarcik v. Forest Hills School Dist., 665 F.2d 443, (3rd Cir. 1981). 8

11 Case: Document: Page: 11 Date Filed: 10/13/2017 Regardless of how the district court labeled the district court s opinion and scheduling order, the substance of these actions is effectively an injunction. The opinion and scheduling order alters the status quo see Calderon v. U.S. Dist. Ct. for Cent. Dist. of Cal., 137 F.3d 1420, 1422 n.2 (9th Cir. 1998); Cohen, 867 F.2d at 1466 and affect[s] predominantly all of the merits, Salazar, 671 F.3d at The status quo is altered by forcing the State to change the way in which elections are held in the 32nd JDC. Stated differently, the State cannot now were a vacancy to arise or a special election ordered legitimately conduct elections for a district that the federal district court has declared unconstitutional because that would have a serious, perhaps irreparable, consequence. Carson, 450 U.S. at 84. If the opinion and scheduling order were not intended to alter the status quo by blocking the State from using the current at-large voting system for the 32nd JDC, either for the 2020 elections or for any special elections prior to that date, there would be no reason for the court to order proposal[s] regarding the appropriate remedy for the court and legislature to take. Minute Entry (Doc. 297). The district court s opinion and scheduling order, taken together, have the practical effect of an injunction regardless of the label. Furthermore, Plaintiffs are mistaken in their assertion that an immediate appeal would allow the limited exception to swallow the final-judgment rule. See Appellees Mot. to Dismiss 15 (Doc. 9

12 Case: Document: Page: 12 Date Filed: 10/13/ ). Courts have long noted that injunctions are appealable even if not dispositive of every single issue in the case. See Tokarcik, 665 F.2d at 446 ( An injunction that does not cover all the legal relief a plaintiff seeks is nevertheless a coercive order from which Congress has granted litigants a right to immediate appellate review. ). Therefore, the practical effect of the district court s opinion and scheduling order also serves to establish jurisdiction now instead of waiting for a judgment after the district court implements a remedial district and potentially orders special elections under a compressed timeframe. A. There Are Several Examples of Courts Finding an Injunction Based on the Practical Effect of a District Courts Orders. In Karcher v. Daggett, Justice Brennan granted a stay pending appeal after a three-judge district court declared New Jersey s congressional districting plan unconstitutional and ordered the legislature to either adopt an alternative redistricting plan... or face the prospect that the District Court will implement its own redistricting plan. 455 U.S. 1303, (Brennan, J., in chambers). Louisiana is in a similar situation here. The district court effectively ordered new plans to be drafted by the parties so that the legislature can implement them. See Terrebonne at 1-2, 91 (Doc. 289); Minute Entry (Doc. 297). This fact seems to be confirmed by the Plaintiffs in this case when they say [the court] was likely to defer to the Louisiana Legislature, in the first instance, to propose a remedy for the 10

13 Case: Document: Page: 13 Date Filed: 10/13/2017 existing violations. Appellees Mot. to Dismiss 13 (Doc. No ). In any event, as the court has already ruled that the at-large voting system violates federal law and the U.S. Constitution, it is clear that any remedy must not be atlarge judicial voting in the 32nd JDC. In Stovall v. City of Cocoa, a Voting Rights Act case where Appellants challenged the at-large method of electing city council members and sought review of a judgment that granted appellee s motion to withdraw a consent decree, the Eleventh Circuit, in holding that Carson controls, further explained: Here, as in Carson, the consent decree was, effectively, an injunction because it would have imposed a new method of electing city council members. The City argues that plaintiffs will not be irreparably harmed because the next City election is a year and a half away and the alleged harm to the appellees cannot be remedied short of revoking this [sic] results of the most recent election and ordering new elections. However, the City ignores the other important harm identified by the Supreme Court in Carson: the loss of the "bargain" obtained through negotiation. Stovall v. City of Cocoa, 117 F.3d 1238, 1241 (11th Cir. 1997) (internal quotations omitted). The State of Louisiana maintains that its at-large voting scheme does not violate Section 2 of the Voting Rights Act nor is it contrary to the U.S. Constitution. Given that any potential remedy would necessarily change the current at-large system, the Defendants here, just as in City of Cocoa, lose the ability to bargain... through negotiation. See id. 11

14 Case: Document: Page: 14 Date Filed: 10/13/2017 This Court has exercised jurisdiction under 28 U.S.C. 1292(a) in a variety of contexts both within and outside the framework of redistricting. This Court has held that a temporary modification to voting districts was a type of temporary injunction and therefore appealable under 28 U.S.C. 1292(a). In re Morton, 460 F. App'x 385 (5th Cir. 2012) (per curiam) (unpublished opinion). In another recent case, this Court noted that [i]n a typical case, these interlocutory rulings would not be appealable with the case still pending in the district court but decided to hear an appeal of two remedy-related rulings where the question [was] how to compute th[e] remedy. Hills v. Entergy Operations, Inc., 866 F.3d 610, 613 (5th Cir. 2017); see also Police Ass'n ex rel. Cannatella v. City of New Orleans, 100 F.3d 1159, 1166, n.3, n.5, n.6 (5th Cir. 1996) (taking two orders together as having the practical effect of granting an injunction and exercising jurisdiction pursuant to 28 U.S.C. 1292(a)(1)) (citing Cooper Industries, Inc., 780 F.2d at 24; Carson, 450 U.S. at 84; Laje v. R.E. Thomason Gen. Hosp., 564 F.2d 1159, 1161 (5th Cir. 1977); Schulner v. Jack Eckerd Corp., 706 F.2d 1113, 1114 (11th Cir.1983)). i. The Supreme Court s Recent Stay of Similar Proceedings in Abbott v. Perez Confirms That This Court Has Jurisdiction. The Supreme Court stayed similar orders on direct appeal from a three-judge district court of the United States District Court for the Western District of Texas 12

15 Case: Document: Page: 15 Date Filed: 10/13/2017 that were not expressly labeled as injunctive but nonetheless had the practical effect of granting an injunction. See Abbott v. Perez, No. 17A225, 2017 U.S. LEXIS 4434 (U.S. Sept. 12, 2017) ( The application for stay presented to Justice Alito and by him referred to the Court is granted, and it is ordered that the order of the United States District Court for the Western District of Texas, case No. SA-11- CV-360, entered August 15, 2017, is stayed pending the timely filing and disposition of an appeal to this Court. ). Similarly, the Supreme Court entered a nearly identical order with respect to the order of the United States District Court for the Western District of Texas regarding Texas state house districts. See Abbott v. Perez, No. 17A245, 2017 U.S. LEXIS 4435 (U.S. Sept. 12, 2017) ( The application for stay presented to Justice Alito and by him referred to the Court is granted, and it is ordered that the order of the United States District Court for the Western District of Texas, case No. SA-11-CV-360, entered August 24, 2017, is stayed pending the timely filing and disposition of an appeal to this Court. ). In Perez, the district court invalidated two congressional districts and compelled Texas to participate in expedited judicial proceedings to redraw the congressional map. Perez v. Abbott, No. SA-11-CV-360, 2017 U.S. Dist. LEXIS (W.D. Tex. Aug. 15, 2017). In denying Texas Motion for Stay, the district court specifically stated that it was denying the Motion because [a]lthough the 13

16 Case: Document: Page: 16 Date Filed: 10/13/2017 Court found violations in Plan H358, the Court has not enjoined its use for any upcoming elections. The District Court further ordered the parties to prepare for the scheduled remedial conference. See Perez v. Abbott, No. SA-11-CV-360 (W.D. Tex. Aug. 28, 2017) (text only entry). Most notably, the Supreme Courts orders in these two case specifically stayed the liability finding not even the order setting the scheduling process for the remedy phase of the case. See Abbott v. Perez, No. 17A225, 2017 U.S. LEXIS 4434 (U.S. Sept. 12, 2017); Abbott v. Perez, No. 17A245, 2017 U.S. LEXIS 4435 (U.S. Sept. 12, 2017). Here, the district court s ruling and scheduling order have the same effect, enjoining the State from using existing districts for elections in the 32nd JDC and essentially ordering the legislature to draw new maps. Minute Entry (Doc. 297) ( Within 40 days, the plaintiffs may file a proposal regarding the appropriate remedy for the court and the legislature to take. The proposal shall be limited to 30 pages. The defendants will have 30 days to file a response which shall be limited to 30 pages. ); 3 Terrebonne (Doc. 289). Plaintiffs attempt to distinguish Perez by arguing that Texas was given a much shorter timeframe to have the legislature 3 Despite the Plaintiffs taking issue with the use of the word may in the scheduling order, Defense counsel understands this to be a directive from the court. Aff. of Freel 9 (Exhibit 1). Additionally, the word may is in many contexts considered to have the same meaning as must. See Black s Law Dictionary, 1068 (9th ed. 2009) ( may Loosely, is required to; shall; must.... In dozens of cases, courts have held may to be synonymous with shall or must.... ) (emphasis in original). 14

17 Case: Document: Page: 17 Date Filed: 10/13/2017 redraw maps. See Appellees Mot. to Dismiss 20 (Doc ). However, here, just as in Perez, the practical effect of the district court s action is to force the State, in one way or another, to start redrawing maps. The expedited nature, or lack thereof, in the district courts timeline is not determinative, [w]hat is determinative is that the order can be immediately enforced. Cohen, 867 F.2d at Plaintiffs further note that there is not currently a regularly scheduled judicial election in the 32nd JDC until 2020, and therefore Defendants will have ample time to challenge the results of the remedial process. See Appellees Mot. to Dismiss 14 (Doc ) However, Plaintiffs have indicated that they will push for special elections in 2018 under whatever new scheme the legislature passes or the district court orders. Aff. of Freel 9 (Exhibit 1). Irrespective of Plaintiffs plan to move forward with their request for a special election in the 32nd JDC, if a seat were to become vacant between now and the next regularly scheduled election in 2018, a special election in the district would be required under the Louisiana Constitution. See La. const. Art. V 22. In any event, there is little doubt that with a ruling stating the current at-large system of elections is both unconstitutional and in violation of Section 2 of the Voting Rights Act, no future election can move forward under the current scheme. While it is not entirely clear if the Carson requirements are applicable in the 15

18 Case: Document: Page: 18 Date Filed: 10/13/2017 redistricting context given the Supreme Courts recent grant of a stay in Perez, the ruling and scheduling order will have serious, perhaps irreparable, consequences, Carson, 450 U.S. at 84, because they held as unconstitutional and in violation of Section 2 the voting system for the 32nd JDC and compel Louisiana to craft potential remedies for the court and legislature to take. Minute Entry (Doc. 297). It defies imagination to think that despite a finding of liability and the order outlining the proposing of the remedy, such action by the district court will not include the inevitable redrawing of districts and substantial alteration of an electoral structure that has been in place for at least the past 34 years. See Terrebonne at 19 (Plfs. Illustraitive Plan) (Doc. 289). The action taken by the District Court alters the status quo despite Plaintiffs insistence to the contrary. See Appellees Mot. to Dismiss 12 (Doc ) ( Indeed, the discriminatory at-large method of election for the 32nd JDC remains in effect. ). The ruling and scheduling order can now be effectually challenged only by immediate appeal, Carson, 450 U.S. at 84, because appellate review from a final judgment after the imposition of remedial maps would come too late to prevent the irreparable harm of being forced to use those maps for any special election, either ordered by the court or under circumstances under which a seat on the 32nd JDC opens while the current unconstitutional electoral system is in place. See La. const. Art. V

19 Case: Document: Page: 19 Date Filed: 10/13/2017 II. In the Intrest of Equity this Court Should Deny the Plaintiffs Motion to Dismiss. In Hall v. State of Louisiana, the Plaintiffs alleged, similar to this case, that a city judicial voting system violated the Fourteenth and Fifteenth Amendments to the United States Constitution and Section 2 of the Voting Rights Act. Ruling, Order, and J., Hall v. State of Louisiana, 3:12-cv BAJ-RLB (M.D. La. June 9, 2015) (ECF No. 562). After a trial on the merits the district court entered judgment in favor of Defendants, including the Governor and the Attorney General, holding that the judicial plan at issue was not in violation of the United States Constitution or federal law. Id. Subsequent to that ruling, the Louisiana Legislature passed a bill changing the structure of judicial elections in that city. See Ruling and Order, Den. Mot. to Vacate, Hall v. State of Louisiana, 3:12-cv BAJ-RLB (ECF. No. 573). Plaintiffs then moved to vacate courts judgment. Id. The district court denied the motion to vacate in part because the action was now moot. Id. at 3-6. Specifically, the court stated that Plaintiffs can no longer challenge that electoral system which does not exist in order to obtain prospective relief. Id at 5 (citing Houston Chronicle Pub. Co. v. City of League City, Tex., 488 F.3d 613, 619 (5th Cir. 2007). The current case presents many factually similarities to those found in Hall. See Terrebonne (Doc. 289). First, given the language of the district courts ruling 17

20 Case: Document: Page: 20 Date Filed: 10/13/2017 and scheduling order and Plaintiffs insistance that the court was likely to defer to the Louisiana Legislature, in the first instance the Legislature may feel compelled to act if this appeal is not permitted to go forward. See Appellees Mot. to Dismiss 13 (Doc ) If the Legislature acts in order to pre-empt a potential court ordered districting plan from being imposed, the case will be moot and the Defendants will lose all rights to appeal a liability ruling with which they disagree. See Houston Chronicle Pub. Co., 488 F.3d at 619 ( It goes without saying that disputes concerning repealed legislation are generally moot. ). Ironically, not permitting this appeal to go forward at this stage may in fact moot the ability of the Defendants to ever seek appellate review of the liability finding since the liability finding is of the current at-large districtring system. It is not unreasonable to assume that if the Legislature were to enact a districting plan for the 32nd JDC in response to the challenged liability finding, that Plaintiffs would come before this court and argue that any appeal of the liability finding with respect to the at-large system would be mooted by the subsequently enacted legislation. This is an additional factor arguing in favor of this Court s jurisdiction to hear this matter on the present appeal. Even if the district court s ruling and scheduling order do not constitute an immediately appealable injunction, this Court will indisputably have appellate 18

21 Case: Document: Page: 21 Date Filed: 10/13/2017 jurisdiction over the district court s invalidation of the current 32nd JDC map and its adoption of whatever alternative remedial map may be decided upon by the district court. If the Court decides to consider the ruling and scheduling order as not appealable now, the lone difference will be that waiting may force the Court to act on such a remedial determination under the constraint of a much-reduced timeline. CONCLUSION For the foregoing reasons, this Court should deny Appellees Motion to Dismiss and this case should proceed with the merits. Respectfully submitted this 13th day of October, /s/ Jason Torchinsky Jason Torchinsky (VSB 47481) Shawn Toomey Sheehy (VSB 82630) Steven P. Saxe (CO 49180) Phillip M. Gordon (TX ) HOLTZMAN VOGEL JOSEFIAK TORCHINSKY PLLC 45 N. Hill Drive, Suite 100 Warrenton, VA Telephone: (540) Facsimile: (540) jtorchinsky@hvjt.law ssheehy@hvjt.law spsaxe@hvjt.law pgordon@hvjt.law Elizabeth Murrill (La. Bar Roll No ) Angelique Duhon Freel (La. Bar Roll No ) 19

22 Case: Document: Page: 22 Date Filed: 10/13/2017 Madeline S. Carbonette (La. Bar Roll No. 3873) Jeffrey Wale (La. Bar Roll No ) Assistant Attorneys General Louisiana Department of Justice Civil Division P. O. BOX Baton Rouge, Louisiana Telephone: (225) Facsimile: (225) Counsel for Defendants 20

23 Case: Document: Page: 23 Date Filed: 10/13/2017 CERTIFICATE OF COMPLIANCE 1. I hereby certify that this motion complies with the type-volume limit of Fed.R. App. P. 27(d)(2)(a), which sets forth a 5,200 word limit, because this document contains 4,640 words. 2. This document complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6), because this document has been prepared in a proportionally spaced typeface using Microsoft Word version in 14 point Times New Roman font. /s/ Jason Torchinsky Jason Torchinsky (VSB 47481) Attorney for Defendants 10/13/

24 Case: Document: Page: 24 Date Filed: 10/13/2017 CERTIFICATE OF SERVICE I hereby certify that on October 13, 2015, I electronically filed the foregoing document with the Clerk of Court for the United States Court of Appeals for the Fifth Circuit by using the appellate CM/ECF system, thereby serving all persons required to be served. Dated: October 13, 2017 /s/ Jason Torchinsky Jason Torchinsky (VSB 47481) Shawn Toomey Sheehy (VSB 82630) Steven P. Saxe (CO 49180) Phillip M. Gordon (TX ) HOLTZMAN VOGEL JOSEFIAK TORCHINSKY PLLC 45 N. Hill Drive, Suite 100 Warrenton, VA Telephone: (540) Facsimile: (540) jtorchinsky@hvjt.law ssheehy@hvjt.law spsaxe@hvjt.law pgordon@hvjt.law Elizabeth Murrill (La. Bar Roll No ) Angelique Duhon Freel (La. Bar Roll No ) Madeline S. Carbonette (La. Bar Roll No. 3873) Jeffrey Wale (La. Bar Roll No ) Assistant Attorneys General Louisiana Department of Justice Civil Division P. O. BOX Baton Rouge, Louisiana Telephone: (225) Facsimile: (225) freela@ag.louisiana.gov carbonettem@ag.louisiana.gov walej.@ag.louisiana.gov Counsel for Defendants 22

25 Case: Document: Page: 25 Date Filed: 10/13/2017 No IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT TERREBONNE PARISH BRANCH NAACP, et al., Plaintiffs-Appellees, v. PIYUSH ( BOBBY ) JINDAL, the GOVERNOR of the STATE OF LOUISIANA, in his official capacity, et al., Defendants-Appellants. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA AFFIDAVIT OF ANGELIQUE FREEL, DIRECTOR CIVIL DIVISION LOUISIANA OFFICE OF THE ATTORNEY GENERAL IN SUPPORT OF DEFENDANT-APPELLANTS OPPOSITION TO PLAINTIFFS MOTION TO DISMISS

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28 Case: Document: Page: 28 Date Filed: 10/13/2017 EXHIBIT A

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