Case 3:14-cv JJB-SCR Document /16/15 Page 1 of 23 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 /16/15 Page 1 of 23 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. PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT Plaintiffs, Terrebonne Parish Branch NAACP, Reverend Vincent Fusilier, Sr., Lionel Myers, Wendell Desmond Shelby, Jr., and Daniel Turner (collectively, Plaintiffs ), through their undersigned counsel, respectfully submit this Response in Opposition to Defendants 1 Motion for Summary Judgment ( Motion ). Doc. 93. INTRODUCTION As set forth in Plaintiffs cross-motion for summary judgment, see Doc. 91 through 92-7, summary judgment should be entered in Plaintiffs favor because the record establishes, beyond dispute, each of the material facts underpinning Plaintiffs statutory and constitutional claims under Section 2 of the Voting Rights Act ( Section 2 ) and the Fourteenth and Fifteenth Amendments of the U.S. Constitution ( Fourteenth and Fifteenth Amendments ). 2 Indeed, the record reflects beyond dispute that Plaintiffs have satisfied their Section 2 burden by: (1) developing an illustrative remedial plan that includes a majority and geographically compact 1 Defendants are Piyush ( Bobby ) Jindal, the Governor of the State of Louisiana, in his official capacity, and James D. ( Buddy ) Caldwell, the Attorney General of the State of Louisiana, in his official capacity. 2 Thus, all of the issues raised in Defendants Motion also are affirmatively addressed in depth in Plaintiffs cross-motion, as well as in this brief.

2 Case 3:14-cv JJB-SCR Document /16/15 Page 2 of 23 Black voter community in a single-member redistricting plan that can serve as an alternative to the dilutive at-large electoral method for the 32 nd Judicial District ( 32 nd JDC ), which is coterminous with Terrebonne Parish ( Terrebonne ); (2) demonstrating the existence of racially polarized voting ( RPV ) in Terrebonne elections; and (3) showing that under the totality of circumstances, Black voters in Terrebonne have less opportunity than other members of the electorate to elect their preferred candidates for the 32 nd JDC, as underscored by stark patterns of RPV and the lack of any Black judges serving on the 32 nd JDC in the history of the court before the filing of the instant lawsuit. Aside from supporting Plaintiffs claim that the at-large electoral method has an impermissible discriminatory effect, the record also reflects, beyond dispute, that at-large voting for the 32 nd JDC has been maintained with a discriminatory purpose in violation of Section 2 and the Fourteenth and Fifteenth Amendments. The record unambiguously demonstrates that at-large voting for the 32 nd JDC was adopted after the passage of the Voting Rights Act of 1965 ( VRA ), and has been maintained without any sound justification since then in the face of at least six legislative proposals and other advocacy to change that electoral method to cure its dilutive effect on Black voting strength in Terrebonne. Undaunted by the record evidence adduced by Plaintiffs in support of their request for summary judgment, Defendants also have moved for summary judgment. However, Defendants have failed to demonstrate the absence of genuine disputes of fact that would entitle them to judgment as a matter of law. Indeed, Defendants raise, in an incoherent brief, an assortment of insubstantial arguments that either are contrary to the law, focus on immaterial facts, find no support in the record, or otherwise ignore material evidence that supports Plaintiffs claims. Accordingly, Defendants request for summary judgment should be denied. 2

3 Case 3:14-cv JJB-SCR Document /16/15 Page 3 of 23 SUMMARY JUDGMENT STANDARD Summary judgment is appropriate if the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see Fed. R. Civ. P. 56(a). The moving party bears the initial burden of demonstrating the absence of genuine issues of material fact. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). In response, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. Id. At summary judgment, the court must view the evidence and the inferences to be drawn therefrom in the light most favorable to the non-moving party. Brown v. City of Houston, Tex., 337 F.3d 539, 541 (5th Cir. 2003). ARGUMENT Under Section 2, according to Thornburg v. Gingles, 478 U.S. 30 (1986), Plaintiffs must demonstrate: (1) that the minority group in Terrebonne is sufficiently large and geographically compact to constitute a majority in a single-member district for electing members to the 32 nd JDC (Gingles one); (2) the minority group is politically cohesive in Terrebonne elections (Gingles two); and (3) the majority votes sufficiently as a bloc to enable it... usually to defeat the minority s preferred candidate in Terrebonne elections (Gingles three). Gingles, 478 U.S. at Plaintiffs also must, under the totality of circumstances, demonstrate that Black voters in Terrebonne have less opportunity than other members of the electorate to participate in the political process and elect their preferred candidates, by presenting any number of various Senate Factors, which are relevant in analyzing whether Section 2 has been violated. Chisom v. Roemer, 501 U.S. 380, 394 (1991); see 52 U.S.C (b). 3

4 Case 3:14-cv JJB-SCR Document /16/15 Page 4 of 23 A. Gingles one As explained in Plaintiffs brief in support of their motion for summary judgment ( Summary Judgment Brief ), Plaintiffs Illustrative Plan, developed by their expert William S. Cooper, demonstrates that the Black voting-age population ( VAP ) in Terrebonne, which is concentrated in three areas (Houma, Gray, and Schriever), is sufficiently numerous and geographically compact to satisfy Gingles one. Doc at The Illustrative Plan includes five-single member districts for electing judges for the 32 nd JDC, one of which, District 1, is comprised of a majority (at 50.81%) of Black voters and, thus, meets the numerosity requirement. See id. at 3-4. Moreover, Plaintiffs Illustrative Plan complies with each of the traditional redistricting principles ( TRPs ), including compactness, contiguity, one person, one vote, maintaining communities of interest, respecting traditional boundaries, and non-dilution of minority voting strength, and thus demonstrates that the Black VAP is sufficiently compact. Id. at 5-12; see also League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 433 (2006). Defendants do not dispute that the Black VAP in Terrebonne is sufficiently numerous. See Doc at 13; Doc at 4. 3 Instead, Defendants contend that the Black VAP is not geographically compact. See id. at Defendants arguments are meritless, and they are not entitled to judgment as a matter of law. 1. Defendants contend that the initial report of Plaintiffs expert, Cooper, contains nothing about the [TRPs that] he used in drafting [the] proposed plan, and this indicates that District 1 in Plaintiffs Illustrative Plan does not comply with TRPs. This misrepresents the record. Doc at Cooper s initial report explicitly states that the Illustrative Plan 3 While Defendants contend that the Black total population (and VAP) has increased only slightly since 1990, the record, based on U.S. Census data, more accurately reflects that between 1980 and 2010, the non- Hispanic single-race Black proportion of the total population in Terrebonne grew by 46.7% and that, by contrast, the total non-hispanic White population remained relatively constant over the 30-year period. Doc It is for this reason, in part, that a majority-black district in Terrebonne is possible now. 4

5 Case 3:14-cv JJB-SCR Document /16/15 Page 5 of 23 presented therein respects [TRPs], including one-person one-vote, compactness, contiguity, respect for communities of interest, and the non-dilution of minority voting strength. Doc Moreover, as Defendants acknowledge, Cooper s supplemental declaration further elaborates on how Plaintiffs Illustrative Plan adheres to these TRPs. Doc ; see also Doc at 14. The fact that Plaintiffs Illustrative Plan respects TRPs demonstrates that the Black VAP in Terrebonne is sufficiently compact to satisfy Gingles one. Doc at Defendants contend through their experts, Dr. Ronald Weber and Bruce Adelson, 5 that Plaintiffs cannot satisfy Gingles one because District 1 in Plaintiffs Illustrative Plan has an odd shape and is not sufficiently compact. Doc at These opinions are wholly unsubstantiated and do not undermine Plaintiffs claims as a matter of law. 6 Compare Doc at with Doc at 6-7; see also Guile v. United States, 422 F.3d 221, 227 (5th Cir. 2005) ( A claim cannot stand or fall on the mere ipse dixit [i.e., unsubstantiated assertion] of a credentialed witness. ). As Plaintiffs expert Cooper explained, District 1 is geographically compact and its shape is regular, as confirmed by statistical measures of compactness and a visual comparison of District 1 to other districts in Louisiana. Doc at 3-6; see also Montes v. City of Yakima, 40 F. Supp. 1377, (E.D. Wash. 2014) (holding that the illustrative district in a Section 2 case was geographically compact as confirmed by looking at the maps of the proposed districts and a comparison of its statistical scores to those of other districts). Unlike Plaintiffs expert, Defendants experts did not run any statistical measures of 4 In a desperate attempt to avoid the merits of Plaintiffs case, Defendants have filed an untimely motion to strike the supplemental report of Cooper, on the ground that Cooper untimely and inappropriately supplemented his report to respond to the opinions of Defendants own experts during expert discovery. See Doc. 84. Plaintiffs have filed an opposition to that motion. 5 As reflected in Plaintiffs Summary Judgment Brief, Plaintiffs maintain that the testimony of Dr. Weber and Adelson is inadmissible under Federal Rule of Evidence ( FRE ) 702, and pending before the Court are motions to exclude their testimony. Doc at 4; see also Docs. 87 through 87-5, 89 through Notably, Defendants expert, Adelson, testified that he did not even know Louisiana s TRPs and, thus, his opinion that Plaintiffs Illustrative Plan does not comply with TRPs is entirely speculative. Doc at 12 n.12. 5

6 Case 3:14-cv JJB-SCR Document /16/15 Page 6 of 23 compactness for District 1 or otherwise compare District 1 to any existing districts in Louisiana either in terms of its compactness scores or shape. See 91-1 at 5-7; 93-1 at Defendants claim that Plaintiffs Illustrative Plan neglects other considerations: contiguity, 8 judicial administration and caseload, 9 and retrogression under Section 5 of the VRA. 10 None of these arguments has merit or otherwise compel the entry of summary judgment in Defendants favor. 4. Defendants contention that Plaintiffs Illustrative Plan is an illegal racial gerrymander (i.e., race predominated over each of the TRPs), Doc at 14, does not entitle them to summary judgment for at least four reasons: (1) the racial gerrymander argument relies upon equal protection cases such as Miller v. Johnson, 515 U.S. 900 (1995), and Shaw v. Reno, 509 U.S. 630 (1993), which are inapplicable during the liability phase of this Section 2 case; (2) the record reveals that the opinions of Defendants experts, Adelson and Dr. Weber, suggest, but 7 Defendants also contend that concentrations of Black voters in Terrebonne are not contiguous. Doc at 16. However, this argument is immaterial since there is no requirement under Gingles that concentrations of minority voters be contiguous. Doc at 7-8 n.7 (referencing Ewing v. Monroe County, 740 F. Supp. 417, 419 (N.D. Miss. 1990) (rejecting Dr. Weber s testimony that the concentrations of Black residents are noncontiguous and therefore not sufficiently compact to constitute a single-member district with a majority black voting age population ). 8 Defendants contention that Plaintiffs Illustrative Plan does not contain a contiguous majority-black District 1 finds no support in the record: a visual inspection of the plan reflects that contiguity is satisfied, which is confirmed by the contiguity check run in the software used by Cooper to develop that plan. Compare Doc at 15 with Doc at 8. Indeed, Defendants expert, Dr. Weber, does not dispute that District 1 is contiguous, and Adelson offers no evidence in support of his passing remark that District 1 is not contiguous. Doc at 8. 9 Relying upon the exact language that their expert Adelson uses in his report, Defendants contend that Plaintiffs Illustrative Plan is not drawn to accommodate... any judicial administration or case load considerations in the 32 nd [JDC]. Compare Doc at 15 with Doc at 30. However, Adelson conceded that he is unaware of whether a Louisiana judicial redistricting plan must be drawn to reflect this factor. Doc at 12 n.11 (citing to Doc. 91-8, Ex. 5 at 241:1-242:9 (Adelson Dep.)). 10 Defendants suggestion that Plaintiffs Illustrative Plan should account for any retrogressive effect on Black voters if single-member districts are implemented pursuant to that plan in light of the 2014 unopposed election of Judge Juan Pickett, a Black judge, to the 32 nd JDC also is misguided. Doc at 16. Currently, Black voters have no ability to elect their preferred judicial candidates for the 32 nd JDC under at-large voting. See generally Doc Moreover, contrary to Defendants assumption, this case is not about any particular candidate, such as Judge Pickett, but rather is about providing Black voters with the opportunity to elect their judicial candidates of choice in election after election regardless of whether that person be black, white, red, purple, whatever color they are. Doc at 63:18-64:53 (Shelby Dep.); id. at 106:8-10. As discussed further infra, the record does not demonstrate that Judge Pickett was the candidate of choice of Black voters when he ran unopposed in November 2014 after Plaintiffs filed this case. 6

7 Case 3:14-cv JJB-SCR Document /16/15 Page 7 of 23 do not unequivocally state, that Plaintiffs Illustrative Plan is a racial gerrymander; (3) even assuming the appropriateness of applying equal protection cases like Miller in the context of Gingles, race was not the predominant factor in the development of Plaintiffs Illustrative Plan, which adheres to TRPs, including contiguity, one person, one vote, maintaining communities of interest, minimizing precinct splits, and compliance with Section 2; and (4) even if the evidence showed that every TRP was subordinated to race in Plaintiffs Illustrative Plan, which it does not, the plan would satisfy strict scrutiny because it is narrowly tailored to serve a compelling state interest: compliance with Section 2 and the remediation of illegal vote dilution. Doc at & n.12; Doc Contrary to Defendants arguments, Plaintiffs can satisfy Gingles one. Defendants apparently are content to rest their Motion on the arguments that they make regarding Gingles one. See Doc at 16 (asserting that [b]ecause the Plaintiffs are not able to satisfy even the first Gingles precondition, it is not necessary to go any further with the Gingles analysis to determine if a Section 2 violation occurred. The Plaintiffs [sic] claim for relief under Section 2 of the Voting Rights Act should be denied. ). Nonetheless, Defendants touch upon the two other Gingles preconditions and raise various observations about other aspects of the case, which are addressed below. These arguments do not defeat Plaintiffs claims as a matter of law. B. Gingles two and three Plaintiffs, through their expert, Dr. Richard L. Engstrom, demonstrate the existence of RPV in Terrebonne elections, i.e., that Black voters in Terrebonne are politically cohesive (Gingles two), and non-black voters, the majority of voters in the Parish, vote sufficiently as a bloc to enable them usually to defeat the minority s preferred candidate in Terrebonne elections (Gingles three). Gingles, 478 U.S. at 31. Indeed, the record reflects that in each of the 7

8 Case 3:14-cv JJB-SCR Document /16/15 Page 8 of 23 seven endogenous and exogenous elections in Terrebonne featuring at least one Black candidate and one white candidate (i.e., biracial elections) competing against each other at-large over a 20- year period, Black voters were cohesive in supporting the Black candidates. Doc at By contrast, non-black voters were cohesive in their refusal to support those candidates, who were defeated in each of the elections, regardless of whether the candidate ran as a Democrat, Republican, or otherwise; for judicial or non-judicial office; or for local, state, or federal office. Id.; see also id. at 21 (explaining that in the seven examined elections, Black voters support for the Black candidates ranged from 71.4% to 99.8% and non-black voter support for the Black candidates was minimal, ranging from 1.1% to 13.7%). In their Motion, Defendants do not suggest that elections in Terrebonne do not reflect RPV. See generally Doc Indeed, the statistical results of Dr. Weber s own analysis of the same seven elections that Dr. Engstrom examined are essentially the same. Doc at Instead, Defendants advance an array of meritless arguments to suggest that Plaintiffs nonetheless cannot establish RPV at trial. 1. Defendants assert that Plaintiffs seek to have this Court evaluate RPV based only on one endogenous election for the 32 nd JDC in Doc at 10. This contention mischaracterizes the record given that both Plaintiffs RPV expert, Dr. Engstrom, and Defendants RPV expert, Dr. Weber, each examined the same seven elections, including an 11 Dr. Weber found that Black voters are cohesive in each of the seven examined elections; thus, Gingles two (i.e., Black voter political cohesion) is not disputed in this case. Doc at 16. Additionally, with respect to Gingles three, Dr. Weber found that in four of the seven examined elections, non-black voters were cohesive in their support for candidates that were not preferred by Black voters such that Black voters preferred candidates were defeated. Id. at 17. Dr. Weber s concession that four of seven examined elections demonstrate RPV is sufficient to satisfy Gingles. Id. (citing to Westwego Citizens for Better Gov t v. City of Westwego, 872 F.2d 1201, 1209 (5th Cir. 1989)). And, with respect to the three elections that Dr. Weber opined did not reflect RPV, his opinion does not defeat Plaintiffs claims for two reasons: (1) as above, RPV in four of seven elections is sufficient to satisfy Gingles; and (2) his opinion with respect to these three elections is based on a flawed rule that he made up that is contrary to the governing legal standard, including Gingles, the seminal Section 2 case, and otherwise lacks social science support. Doc at Ultimately, then there is no dispute that Plaintiffs satisfy Gingles two and three. 8

9 Case 3:14-cv JJB-SCR Document /16/15 Page 9 of 23 endogenous election (in 1994 for the 32 nd JDC), two judicial exogenous election (in 2014 for the Houma City Court and in 1993 for the First Circuit Court of Appeal), and four non-judicial exogenous elections (in 2014 for the City Marshal, in 2011 for the Tax Assessor, and in 2008 and 2012 for the U.S. presidency). Doc at Defendants contend that exogenous elections are considered less probative of RPV than endogenous elections. Doc at 10. Although that is true, see Doc at 14 n.14 (citing Clark v. Calhoun County, 21 F.3d 92, 97 (5th Cir. 1994)), the law equally is clear that exogenous elections may not be excluded from the analysis, particularly where, as here, there are few or no endogenous elections to analyze, id. (citing Westwego Citizens for Better Gov t, 872 F.2d at , and Citizens for a Better Gretna v. City of Gretna, 834 F.2d 496, (5th Cir. 1987)). As set forth above, each of the examined exogenous elections exhibits RPV. 3. Defendants argue that elections held in 1993 and 1994 are stale. Doc at However, Defendants cite no case law that requires this Court to discount the 1994 and 1993 judicial elections. Compare Doc at 15 n.16, 17 n.17 with Doc at Each of those elections exhibit RPV. Doc at And even if this Court were required to disregard them, data from the five other elections held within the past seven years in Terrebonne would remain sufficient to demonstrate RPV at trial. Doc at 17 n.17; Doc ; see also Westwego Citizens for Better Gov t, 872 F.2d at 1208 (reversing district court because it erroneously believed that plaintiffs could not, as a matter of law, make out a vote dilution claim 12 Defendants also assert that Plaintiffs are attempting to conduct an apples to oranges comparison between elections in 1993 and Doc at 10. In support of this argument, Defendants rely on the testimony of their expert, Michael Beychok, who is the subject of a Daubert motion by Plaintiffs. See Doc at 10; Doc. 88. However, Beychok made clear in his deposition that his opinion was merely based on his experience as a campaign consultant, not as a political scientist; that he would not use elections from 1993 to assess or determine campaign strategy today; and that his opinion does not address whether elections in 1993 and 1994 are probative for the purpose of conducting a RPV analysis. Doc at 132:11-135:5 (Beychok Dep.); see also Doc. 88 through

10 Case 3:14-cv JJB-SCR Document /16/15 Page 10 of 23 based on evidence of [RPV] drawn from elections other than the [endogenous] elections themselves ). Contrary to Defendants argument, Plaintiffs can satisfy Gingles two and three. C. Totality of Circumstances As explained in Plaintiffs Summary Judgment Brief, there is no genuine dispute that, under the totality of circumstances, Black voters in Terrebonne have less opportunity than other members of the electorate to participate in the political process. Doc at Indeed, there is no genuine dispute that: (1) there is a long, intense, and persistent history of voting discrimination in Louisiana and Terrebonne (Senate Factor 1); (2) RPV exists in Louisiana and, as discussed above, in Terrebonne (Senate Factor 2); (3) the majority-vote requirement and numbered post system for the 32 nd JDC enhance the likelihood of discrimination against Black voters (Senate Factor 3); (4) discrimination in education, employment, health, and other areas of life hinder Black residents ability to participate effectively in the political process (Senate Factor 5); (5) no Black candidate who has faced opposition has ever been elected to the 32 nd JDC or any other at-large elected office in Terrebonne (Senate Factor 7); and (6) the justifications for the maintenance of at-large voting for the 32 nd JDC are tenuous (Senate Factor 9). Id. at Defendants attempt to quibble with Plaintiffs ability to establish some of these Senate Factors. Doc at None of Defendants arguments defeat Plaintiffs claims as a matter of law. 1. Senate Factor 1 (History of Voting Discrimination in Louisiana and Terrebonne) Plaintiffs, through their expert Dr. Allan Lichtman, have documented the long, intense, and persistent history of de jure and de facto discrimination against Black voters in Louisiana that extends to the election of judges. Doc at Defendants, through their expert, Adelson, concede Louisiana s segregationist and discriminatory past, prior to and through the 10

11 Case 3:14-cv JJB-SCR Document /16/15 Page 11 of 23 era of Jim Crow, which Adelson acknowledges encompasses at least the years through Doc at 5; see also Doc at Nonetheless, Defendants appear to insist that this factor does not weigh in Plaintiffs favor by making several arguments, but even these contentions do not undermine Plaintiffs claims as a matter of law because they are either contrary to precedent or ignore material evidence in Plaintiffs favor. a. Defendants emphasize that Louisiana is no longer segregated by race, and that there have been vast and welcome changes over the past 50 years. Doc at 5, 7. The fact, however, that there have been some improvements in Black political participation since the passage of the VRA does not defeat Plaintiffs claim as a matter of law. See Doc at 28-29; see also Zimmer v. McKeithen, 485 F.2d 1297, 1306 (5th Cir. 1973) (holding that the district court erred in finding that the removal of certain impediments to participation in the electoral process vitiated the significance of the showing of past discrimination ; [t]his conclusion is untenable... because the debilitating effects of these impediments do persist ), aff d sub nom., E. Carroll Parish Sch. Bd. v. Marshall, 424 U.S. 636 (1976). Defendants argument that there have been welcome changes over the past 50 years also ignores the undisputed record evidence that voting discrimination in Louisiana did not end with the enactment of the VRA. Doc at 25. Plaintiffs expert Dr. Lichtman highlights how the adoption and maintenance of at-large voting in Louisiana, generally, and for the 32 nd JDC, specifically, after the enactment of the VRA, has been a part of Louisiana s continued effort to thwart Black political participation. Id. at And Dr. Lichtman documents how some of the welcome changes occurred because federal courts struck down at-large electoral methods in Louisiana and required the Louisiana Legislature to enact legislation, signed into law by the Governor, to create majority-black judicial subdistricts, including as recently as Id. at 26-11

12 Case 3:14-cv JJB-SCR Document /16/15 Page 12 of For instance, a Section 2 lawsuit against two local bodies in Terrebonne resulted in the creation of majority-black subdistricts. Id. at 27. b. Defendants contend that there are no more legal barriers to political participation in Terrebonne based on: (1) registration and turnout rates; (2) the ability of Black voters to cast a ballot; and (3) the ability of Black candidates to run for office in Louisiana. Doc at 5-7. Further, using the exact same language as their expert Adelson, Defendants assert that [t]here are [Black] elected officials today when there were none during the Jim Crow era. Compare Doc at 7 with Doc at 32. This argument also does not defeat Plaintiffs claims as a matter of law. First, as discussed in Plaintiffs Summary Judgment Brief, the data of Defendants own expert, Dr. Weber, demonstrates that racial disparities in registration and turnout persist in Terrebonne. Doc at 29, 35. Second, Black voters can be disempowered despite the ability to cast a ballot. In fact, the Supreme Court has long made clear that the right of suffrage can be denied by [means of] dilution... just as effectively as by wholly prohibiting the free exercise of the franchise. Reynolds v. Sims, 377 U.S. 533, 555 (1964). As discussed above, since the passage of the VRA, Louisiana has used at-large voting, in combination with other devices, such as a majority vote requirement and designated posts, to ensure that the votes of Black citizens have count less than those cast by white voters. This is precisely the type of claim that Plaintiffs are making in this case. See, e.g., Doc at 65:24-25 (Boykin Dep.) ( [T]he current system that we now have atlarge dilutes the African-American vote. ); id. at 67:10-15; 73:7-11; Doc at 64:15-25 (Shelby Dep.) (describing how the at-large voting scheme does not actually allow the community of interest [of Black voters] to have a reasonable voice in the vote ). 12

13 Case 3:14-cv JJB-SCR Document /16/15 Page 13 of 23 Third, while Black candidates may run for office in Louisiana, the undisputed record shows that, in Terrebonne, Black candidates are discouraged from running for at-large elected seats, as for the 32 nd JDC, and that when they do run, they lose in contested at-large elections. Doc at 17-22, 30-31, 36 n.39; see also Doc at 67:9-68-4; 125:16-127:7 (Shelby Dep.) (identifying Black candidates discouraged from running in Terrebonne); Doc at 25:6-23 (Fusilier Dep.) (same). The record also is undisputed that, with few exceptions, Black candidates in Louisiana are elected from single-member majority-black districts and not at-large in majority-white jurisdictions. Doc at 17-22, 30-31, & n.39; see also Doc at 4 n.3; Ex. 1 at 64:15-65:7; 67:16-69:6; 80:15-19; 102:9-18 (Baldone Dep.); Doc at 42:7-11; 44:19-45:1; 55:13-16; 56:11-23; 57:8-19 (Downer Dep.); Ex. 2 at 48:3-15; 49:7-52:7; 65:5-11; 117:4-20 (Honoré Dep.); Ex. 3 at 36:24-38:23 (Harrison Dep.); Ex. 4 at 52:17-54:1; 56:2-11; 59:7-22; 60:12-61:9; 62:1-64:4 (Dove Dep.). These undisputed facts demonstrate that at-large voting has an impermissible dilutive effect on minority voting strength. 2. Senate Factor 5 (Discrimination in Areas of Life Impacting Political Participation) Plaintiffs have demonstrated, through their experts Dr. Lichtman and Cooper, that there is a significant history of discrimination in virtually every aspect of political, economic, and social life in Louisiana and that stark socioeconomic disparities exist between Black and white residents in Terrebonne in terms of household income, the poverty rate, reliance on food stamps, access to full-time jobs, the unemployment rate, the infant mortality rate, and other measures of socioeconomic well-being. See Doc at Defendants, through Dr. Weber, do not dispute these stark socioeconomic disparities but instead contend that there are no lingering discriminatory effects on Black political participation in Terrebonne. Doc at 5-7. The record does not support this argument because Dr. Weber s 13

14 Case 3:14-cv JJB-SCR Document /16/15 Page 14 of 23 own data demonstrates that in most elections in Terrebonne, Black voters do not register or turn out to vote at the same rate as white voters, and, even when Black voters (barely) participate at a higher level than white voters, they are unable to elect the candidates of their choice. Doc at 28-29, Defendants, thus, are not entitled to summary judgment on this basis. 3. Senate Factor 7 (Lack of Black Electoral Success) It is undisputed that prior to this lawsuit, no Black person had ever served on the 32 nd JDC. Doc at Defendants acknowledge that, of the two Black candidates who have run for the 32 nd JDC, Judge Pickett was the only Black candidate to win office, 15 and he ran unopposed in November 2014 after this lawsuit was filed. Doc at 7, 9. Defendants nonetheless attempt to downplay the significance of this lack of Black electoral success by making three arguments, none of which defeat Plaintiffs claims as a matter of law. a. Defendants contention that the election of Judge Pickett demonstrates that Black voters can elect their candidates of choice to the 32 nd JDC, Doc at 9, is contrary to case law and the record evidence. First, Judge Pickett s unopposed election to an open seat on the 32 nd JDC reflects the quintessential special circumstances that the Supreme Court has recognized fail to undercut a 13 Moreover, Dr. Weber s opinion on the lingering effects of discrimination in Terrebonne was based on only a comparison of voter registration and turnout rates for Black and white voters. He failed to analyze the impact of socioeconomic disparities on Black candidates ability to raise campaign funds, obtain volunteers, purchase newspaper and television ads, engage in direct mail campaigns, and hire professional consultants or Black voters ability to participate in the political process by making campaign contributions or serving as campaign volunteers. Doc at Moreover, Defendants have not and cannot dispute that Black people are underrepresented in the judiciary across Louisiana where 17.5% of judges in Louisiana s courts are Black even though the Black population as of 2010 was 30.5% of the total population. Doc at (referencing the American Bar Association s National Database on Judicial Diversity in State Courts); see also Doc at 33 (Adelson conceding that he did not analyz[e] the data on the race of judges throughout the state ). 15 As a result, until Judge Pickett s uncontested election in 2014, the persistent election of white judges to the 32 nd JDC bestowed incumbent advantages on white voters and white judges and never on Black voters and their preferred judicial candidates. Doc at 39 n

15 Case 3:14-cv JJB-SCR Document /16/15 Page 15 of 23 Section 2 claim, 16 since majority citizens might evade 2 by manipulating the election of a safe minority candidate, Doc at 39 (citing Gingles, 478 U.S. at 75). Indeed, it is clearly exceptional 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. Id. Second, contrary to Defendants suggestion, the record does not demonstrate that Judge Pickett was the candidate of choice of Black voters. See Doc at 39 (citing to Doc. 92-3, Ex. 8 at 63:18-64:5 (Shelby Dep.); Doc. 92-2, Ex. 7 at 146:7-153:2 (Boykin Dep.); Doc. 92-5, Ex. 10 at 16:5-17:14 (Fusilier Dep.); Doc , Ex. 17 at 204:17-206:20 (Lewis Dep.)). In suggesting otherwise, Defendants rely only on Plaintiff Turner s testimony and in so doing misrepresent that testimony. Compare Doc at 11 with Doc. 92-4, Ex. 9 at 19:1-23:13 (Turner Dep.) (testifying that Judge Pickett was chosen by the political fathers, may not be the choice of the majority of black people [because] [h]e was not elected in a single member district, and that for a majority of black people, it may not be their choice because they didn t choose him. He was sort of appointed to that position. ). Third, even assuming that Judge Pickett s election did not involve special circumstances, which it did, and even assuming that Black voters were cohesive in their support of him, his single election does not rebut the undisputed and consistent pattern of Black electoral defeat in Terrebonne, where Black candidates have lost at-large regardless of whether they have run as 16 Further demonstration of the special circumstances of Judge Pickett s election is that he registered to vote as a Democrat in 1994; after a decade, in July 2014, switched his party to Independent after he announced his candidacy for the 32 nd JDC; then a month later in August 2014, he switched his party to Republican during qualifying for the 32 nd JDC election; and then in December 2014, he switched his party back to Democrat, a little more than a month after his election to the 32 nd JDC. Ex. 5 (Public Records Request Juan Pickett s Party Affiliation History from Registrar of Voters); Doc at 7. This is despite that the 32 nd JDC election is a nonpartisan election. Ex. 6 at 148: (Secretary of State 30(b)(6) Dep.). 15

16 Case 3:14-cv JJB-SCR Document /16/15 Page 16 of 23 Republicans or Democrats, for judicial or non-judicial office, or for local, state, or federal office. Doc at 14, b. Defendants imply that, unlike Judge Pickett, other Black candidates lost because they did not compete as Republicans or run serious campaign[s]. Compare Doc at with Doc at Defendants attempt to rebut RPV by invoking partisanship and other purportedly race-neutral factors is without merit and does not entitle Defendants to summary judgment. Doc at Most notably, Defendants claim that Black candidates can win so long as they run as Republicans flies in the face of the experience of another Black candidate, Cheryl Carter, who ran for the Houma City Court in November 2014 as a Republican against two white Republican candidates and lost, finishing last in that race. Id. at 15, 30, 40-44; Doc ; Doc While Ms. Carter received more than 85% of Black voter support thus demonstrating that Black voters had reason to vote for her only about 8% of non-black voters supported her. Doc at 15, 30, 40-44; Doc ; Doc c. Defendants argument that the lack of Black judges in the 32 nd JDC is due to a lack of Black candidates, Doc at 7, also does not defeat Plaintiffs case since 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), and, thus, that 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); see also McMillan, 748 F.2d at 1045; Doc.91-1 at 17, Nor does Defendants assertion that there purportedly are few Black attorneys in Terrebonne undermine Plaintiffs claim. Doc at 9. First, the record reflects that there are many Black attorneys in Terrebonne. See Doc at 33:17-34:17 (Lewis Dep.) (identifying Black attorneys in Terrebonne, including some that have been practicing longer than Mr. 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). Second, as explained supra, this lawsuit is not necessarily about electing Black lawyers to serve as 16

17 Case 3:14-cv JJB-SCR Document /16/15 Page 17 of Senate Factor 9 (Tenuous Rationales) Using the same language as their expert Adelson, Defendants assert that judicial subdistricts are disfavored because judges serve the entire jurisdiction. Doc at 13; see also id. at 8. This argument does not defeat Plaintiffs claims as a matter of law because it is inconsistent with binding precedent and Louisiana s own experience with judicial redistricting. Compare Doc at 13 with 91-7 at 27; see also Doc at 8; Doc at The Supreme Court, in Chisom v. Roemer, 501 U.S. 380 (1991), a case arising out of Louisiana, squarely held that Section 2 applies to judicial elections. Id. at 384. Consistent with that holding, federal courts have ordered the establishment of numerous majority-minority judicial subdistricts for trial and appellate courts in Louisiana. Doc at There is no evidence in the record that judges in these subdistricts have failed to serve Louisiana residents. Id. at 42. Moreover, Defendants do not acknowledge, much less dispute, that under at-large voting, Judge Timothy Ellender was reelected without opposition to the 32 nd JDC in 2008 even after he was suspended by the Louisiana Supreme Court for appearing in blackface in an apparent parody of Black criminal defendants who appeared before him, and despite being charged with mistreating a woman who appeared before him in a domestic abuse case in Compare Doc at 50 with Doc Judge Ellender s portrayal of African-Americans in a racially stereotypical manner... [not only] perpetuated the notion of African-Americans as both inferior and as criminals, but also called into question... his ability to be fair and impartial toward African-Americans who appear before his court as defendants in criminal proceedings. In re judges but about Black voters having the opportunity to elect their preferred judicial candidates. See also, e.g., Ex.1 at 96:3-17 (Baldone Dep.). 18 With respect to judicial district courts alone in Louisiana (i.e., not including appellate and other state courts), the following non-exhaustive list of bills, signed by the Governor, established new judicial districts or otherwise redistricted such courts: Act 457 of 2012 (HB 767) (24 th JDC); Act 416 of 2007 (HB 846) (11 th JDC); Act 403 of 1999 (SB 65) (14 th JDC); Act 99 of 1998 (HB 55) (15 th JDC); Act 145 of 1994 (HB 105) (19 th JDC); Act 780 of 1993 (HB 1528) (23 rd JDC); Act 214 of 1993 (SB 232) (16 th JDC); see also Prejean v. Foster, 83 F. App x 5, 8-9, 8-9 (5th Cir. La. 2003) (referencing Acts 838, 839, and 844 of 1989, Act 145 of 1994, and Act 780 of 1993). 17

18 Case 3:14-cv JJB-SCR Document /16/15 Page 18 of 23 Ellender, 889 So.2d 225, (La. 2004). Thus, Defendants attempt to justify at-large voting on the ground of electoral accountability rings hollow and does not warrant the entry of summary judgment in their favor. Compare Doc at 7 with Doc at Proportionality Defendants also suggest that Plaintiffs (and other Black voters in Terrebonne) are not entitled to proportional representation on the 32 nd JDC. Doc at 7, 13 (citing Johnson v. De Grandy, 512 U.S. 997, 1008 (1994)). Put another way, Defendants suggest that Plaintiffs cannot prove a Section 2 violation if the number of majority-black districts in Terrebonne is at least roughly proportional to Black voters share of Terrebonne s population. While proportionality is a relevant consideration in the totality of circumstances inquiry, see Johnson, 512 U.S. at 1000, Defendants argument is misplaced because there are no majority-black districts in Terrebonne for the 32 nd JDC. See id. at 1014 n.11 (noting that the concept of proportionality links the number of majority-minority voting districts to minority members share of the relevant population ) (emphasis added). In sum, contrary to Defendants suggestion, Plaintiffs can demonstrate, under the totality of circumstances, that Black voters in Terrebonne have less opportunity than other members of the electorate to elect their preferred candidates for the 32 nd JDC. D. Intentional Discrimination As explained in Plaintiffs Summary Judgment Brief, Louisiana has maintained at-large voting for the 32 nd JDC since 1968 in the face of six legislative proposals and other advocacy to change the electoral method because of its dilutive effect on Black voting strength in Terrebonne. Doc at 45-50; see also, e.g., Rogers v. Lodge, 458 U.S. 613, (1982) (affirming district court s finding that at-large voting was maintained for invidious purposes in 18

19 Case 3:14-cv JJB-SCR Document /16/15 Page 19 of 23 violation of Fourteenth and Fifteenth Amendments); McMillan, 748 F.2d at & n.6 (affirming finding that at-large voting was maintained with a discriminatory purpose where county commissioners refus[ed] to submit to voters a proposed referendum that would change the election system from at-large to single-member districts ). Defendants do not dispute this legislative record, but nonetheless attempt to defeat Plaintiffs discriminatory purpose claims by making two arguments. Doc at Both are meritless and do not entitle Defendants to judgment as a matter of law. 1. Defendants assert that they are not the parties that can give the Plaintiffs the remedy they seek because, unlike the Louisiana Legislature, they do not have the authority under the Louisiana Constitution to modify the current judicial election plan of the 32nd JDC. Id. Defendants also raise this argument in their separate motion for judgment on the pleadings, Doc. 85, and this contention is unpersuasive as explained in Plaintiffs response to that motion, and in light of the evidence discussed supra note 18 and infra. 2. Defendants also argue that there is no evidence [of] how either the Governor or the Attorney General have [had]... discriminatory intent with regard to the current method of electing judges in the 32 nd JDC. Doc at 17; see also id. at 18. Defendants emphasize that any measures to establish district-based voting for the 32 nd JDC must be adopted by the Louisiana Legislature, and thus far, no bill has reached the Governor s desk. Id. at Based on this reasoning, Defendants imply that Plaintiffs cannot establish the requisite discriminatory intent As a threshold matter, Defendants cite no authority to support the notion that the inquiry into discriminatory intent must be this granular. See id. The Governor and the Attorney General have been sued in their official capacities. See Doc As Defendants have acknowledged, Doc at 2, this suit is functionally against the State of Louisiana. See Hafer v. Melo, 502 U.S. 21, 25 (1991) ( Suits against state officials in their official capacity therefore should be treated as suits against the State. ); see also id. at 26 ( an official capacity suit against a state officer is not a suit against the official but rather is a suit against the official s office. As such it is no different from a suit against the State itself. ) (internal quotation marks and citation omitted). Accordingly, in 19

20 Case 3:14-cv JJB-SCR Document /16/15 Page 20 of 23 This argument is flawed, however, because ample evidence demonstrates that, for decades, the Governor and Attorney General have played a critical and intimate role in judicial redistricting. See Doc (documenting the Governor s role in appointing a legislative task force to remedy a vote dilution finding with respect to judicial districts); Doc at & infra note18 (documenting the Governor s role in signing legislation into law that would remedy illegal vote dilution in judicial districts); Ex. 7 (documenting the Governor s veto message with respect to local redistricting in 2008); 20 Ex. 8 at 40:1-48:19; 64:12-69:13; 111:23-113:20 (Attorney General 30(b)(6) Dep.) (reflecting that the Attorney General has given opinions about the conduct of elections in Terrebonne, receives notice of all bills filed, and monitors all legislation, which necessarily includes the six legislative proposals related to redistricting the 32 nd JDC). 21 Given the significant roles that the Governor and the Attorney General play in the legislative process, and the undisputed failure of six legislative proposals to establish districtbased voting for the 32 nd JDC, the record amply supports the inference 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, 639 F.2d at assessing discriminatory purpose, the Supreme Court and the Fifth Circuit have not individually analyzed whether each of the named defendants had a discriminatory intent as Defendants here would have it. See Rogers, 458 U.S. at ; McMillan, 748 F.2d at & n.6; Lodge v. Buxton, 639 F.2d 1358, (5th Cir. Unit B 1981); 639 F.2d at ; see also Veasey v. Perry, F.3d, 2015 WL , at *8 (5th Cir. Aug. 5, 2015) (in a suit where the Governor of Texas, Secretary of State of Texas, State of Texas, and the Director of Department of Public Safety of Texas were the defendants in their official capacities, focusing on the Texas Legislature s purpose in passing a challenged measure). 20 Indeed, as part of the Governor s constitutional and statutory obligations, he has signed into law redistricting legislation passed as a result of litigation, in or outside of settlement proceedings, to remedy violations of federal law; appointed a task force to advise the legislature about local remedial redistricting; and, monitors, opines on and/or vetoes redistricting legislation. See, e.g., Ex. 9 at 28:9-41:8; 52:3-9; 54:1-57:19; 59:2-18; 86:7-87:17; 102:20-104:13; 106:22-107:8; 108:24-110:12; 114:14-19; 117:10-119:8 (Governor 30(b)(6) Dep.). 21 Indeed, as part of the Attorney General s constitutional and statutory obligations, he has issued opinions about local elections and local redistricting; monitored and fielded questions from legislators about redistricting bills; and/or attended legislative committee hearings regarding redistricting. See, e.g., Ex. 8 at 55:20-60:6; 108:7-109:2; 134:19-135:4; 139:5-17; 141:2-144:3; 147:9-149:20; 158:16-25 (Attorney General 30(b)(6) Dep.). 20

21 Case 3:14-cv JJB-SCR Document /16/15 Page 21 of 23 Contrary to Defendants argument, Plaintiffs can establish at trial that at-large voting for the 32 nd JDC has been maintained with a discriminatory purpose in violation of Section 2 and the Fourteenth and Fifteenth Amendments. CONCLUSION For the reasons set forth above, and in Plaintiffs cross-motion for summary judgment, Defendants Motion for Summary Judgment should be denied. Respectfully submitted this 11th day of September, /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) cabral2@aol.com Marshall Taylor Victor Goode Of Counsel NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE 4805 Mt. Hope Drive 21

22 Case 3:14-cv JJB-SCR Document /16/15 Page 22 of 23 Baltimore, MD Telephone: (410) Counsel for Plaintiffs 22