Case 3:14-cv JJB-EWD Document /22/17 Page 1 of 21 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

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1 Case 3:14-cv JJB-EWD Document /22/17 Page 1 of 21 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA TERREBONNE PARISH BRANCH NAACP, ET AL VERSUS PIYUSH ( BOBBY ) JINDAL, THE GOVERNOR OF THE STATE OF LOUISIANA, IN HIS OFFICIAL CAPACITY, ET AL CIVIL ACTION NO JJB-EWD ****************************************************************************** DEFENDANTS MEMORANDUM IN SUPPORT OF MOTION TO STAY ORDER ON TERREBONNE PARISH S AT-LARGE 32ND JUDICIAL DISTRICT COURT PENDING APPEAL Defendants Jeff Landry, in his official capacity as Attorney General of Louisiana, and John Bel Edwards, in his official capacity as Governor of Louisiana, respectfully move for a stay pending appeal of this Court s Ruling (Aug. 17, 2017), Doc. No. 289, and Scheduling Order for proceedings held before Judge James J. Brady: Status Conference (Sept. 12, 2017), Doc. No The 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 *2-3 (M.D. La. Aug. 17, 2017) (Doc. No. 289) ( [T]he Court finds 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, and it has been maintained for that purpose, in violation of Section 2 and the United States Constitution. ); Minute Entry (Doc. No. 297) ( 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. ). 1

2 Case 3:14-cv JJB-EWD Document /22/17 Page 2 of 21 The Court s Ruling and Scheduling Order will likely be reversed on appeal because they hold that the at-large voting system for the 32nd JDC deprives black voters of the equal opportunity to elect candidates of their choice in violation of Section 2, and it has been maintained for that purpose, in violation of Section 2 and the United States Constitution. Therefore, pursuant to Federal Rule of Civil Procedure 62(c), Defendants request the Court stay its Ruling and Scheduling Order while the appeal at this stage (recently approved by the United States Supreme Court) is addressed. Defendants request this stay to preserve the status quo pending appeal and to prevent the enormous waste of judicial and State resources that would be necessary to undertake a redistricting of the 32nd JDC, and minimize disruption to the State s judicial processes. If the State is allowed to continue to utilize the current slate of elected judges while this appeal is pending or if a special election becomes necessary under state law, there will be no harm to Plaintiffs. Because regularly scheduled elections are not set for this judicial district until 2020, there is more than sufficient time for meaningful appellate review of the liability decision and order without spending the resources of the State and this Court, and disrupting the State s judicial process, while the Fifth Circuit reviews the liability finding pursuant to the process recently affirmed by the United States Supreme Court. Defendants request a ruling on this motion by October 13, then, if necessary, the Defendants intend to seek a stay from the Court of Appeals for the 5th Circuit. I. THIS COURT S RULING AND SCHEDULING ORDER ENJOIN THE STATE FROM CONDUCTING ELECTIONS FOR THE 32ND JDC. This Court s Ruling and Scheduling Order effectively enjoin the State from conducting judicial elections for the 32nd JDC in Terrebonne Parish. The 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, and it has been maintained for that purpose, in violation of Section 2 and 2

3 Case 3:14-cv JJB-EWD Document /22/17 Page 3 of 21 the United States Constitution. Terrebonne at *2-3. Furthermore, the Court ordered in the September 12 th, 2017 Status Conference that the Plaintiffs should file a proposal regarding the appropriate remedy for the court and legislature to take. Minute Entry (Doc. No. 297). Despite the label the Court has applied to its Ruling and Order, the practical effect is an injunction. In Carson, the Supreme Court made clear that it is the practical effect and not the form of a lower court s order that dictates appellate jurisdiction. Carson v. Am. Brands, Inc., 450 U.S. 79, 83 (1981); see also Salazar ex rel. Salazar v. District of Columbia, 671 F.3d 1258, (D.C. Cir. 2012) ( Even 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. ); Thomas ex rel. D.M.T. v. Sch. Bd. St. Martin Par., 756 F.3d 380, 384 (5th Cir. 2014). Furthermore, the Supreme Court stayed a similar order related to Texas congressional districts on direct appeal from a three-judge panel of the Western District of Texas, which was not expressly labeled as injunctive but nonetheless had the practical effect of granting an injunction. 1 See Order, Perez v. Perry, No. 5:11-cv OLG-JES-XR (Entered: 09/13/2017) (Doc. No. 1559) ( The application for stay... is granted, and it is ordered that the order of the United States District Court for the Western District of Texas... is stayed pending the timely filing and disposition of an appeal to this Court. ); Emergency Application for Stay or Injunctive Relief Pending Appeal to the Supreme Court of the United States, Abbott v. Perez, 582 U.S., 1 The Status Conference and subsequent Scheduling Order occurred on September 12, several hours before the Supreme Court s stay orders were issued in Abbott v. Perez (although these orders were docketed by the District Court on September 13). Plaintiffs, in their September 20th Advisory Regarding Defendants Notice of Appeal, informed the Court that they plan to vigorously oppose any appeal sought and/or taken by Defendants before a final judgment is entered. Pl s Advisory Re. Def. Not. of App., 3 (Doc. 310). The vigorousness of the Plaintiffs protestations aside, the fundamental fact remains that the Supreme Court of the United States altered the applicable procedures with respect to taking appeals where the practical effect is an injunction on September 12, Furthermore, Plaintiffs are mistaken in relying on the final judgment rule when 28 U.S.C. 1292(a) specifically allows appellate review from interlocutory and injunctive orders. See 28 U.S.C. 1292(a). Nonetheless, whether the Notice of Appeal should be dismissed at this stage is a matter that should properly be before United States Court of Appeals for the Fifth Circuit. 3

4 Case 3:14-cv JJB-EWD Document /22/17 Page 4 of 21 at *17-20 (Submitted Aug. 25, 2017) (No. 17A225). 2 Similarly, the Supreme Court entered a nearly identical order with respect to another order of the Western District of Texas regarding Texas state house districts. See Order, Perez v. Perry, No. 5:11-cv OLG-JES-XR (Entered: 09/13/2017) (Doc. No. 1560) ( The application for stay... granted, and it is ordered that the order of the United States District Court for the Western District of Texas...is stayed pending the timely filing and disposition of an appeal to this Court. ). The same procedure used in Texas applies here. Because this Court both declared the 32nd JDC unlawful and has ordered the creation of a remedy that effectively precludes the continued use of at-large voting in the 32nd JDC, its Ruling and Order have the practical effect of an injunction, however they are labeled. II. THE COURT S RULING AND ORDER SHOULD BE STAYED PENDING APPEAL. The Supreme Court has outlined four factors to determine if a stay should be granted pending appeal: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776 (1987). A stay pending appeal is a common remedy in cases such as this. See Perez v. Perry, No. 5:11-cv OLG-JES-XR (Entered: 09/13/2017) (Doc. No. 1559); see, e.g., Gill v. Whitford, 137 S. Ct (2017) (mem. op.); Perry v. Perez, 565 U.S (2011) (mem. op.); McDaniel v. Sanchez, 448 U.S (1980) (Powell, J., in chambers); Bullock v. Weiser, 404 U.S (1972); Whitcomb v. Chavis, 396 U.S (1970). All four factors favor a stay in this case. 2 Subsequent to the Supreme Court s Granting of the Emergency Application for Stay, Texas requested that their stay application be used as a jurisdictional statement. Appellees in that case appear to agree. As of this writing, the Supreme Court has not responded to the request. See Letter to Clerk, United States Supreme Court, available at 4

5 Case 3:14-cv JJB-EWD Document /22/17 Page 5 of 21 III. DEFENDANTS WILL LIKELY SUCCEED ON THE MERITS. A. This Court Lacks Subject Matter Jurisdiction Because Section 2 of the Voting Rights Act No Longer Applies to Judicial Elections. i. Since the Supreme Court s Ruling in Chisom the Court Has Reversed Itself and No Longer Treats Elected Judges as Representatives. The Supreme Court held in Chisom that elected judges fall within the ambit of 2 as amended over the emphatic dissent of Justice Scalia. Chisom v. Roemer, 501 U.S. 380, 404 (1991); see also id. at (Scalia, J., dissenting). However, in subsequent decisions the Supreme Court has seemingly moved from that position and continued to emphasize the fact that judges are different than their legislative and executive branch counterparts. See Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1662 (2015) ( Judges are not politicians, even when they come to the bench by way of the ballot. And a State s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. ); Caperton v. A.T. Massey Coal, 556 U.S. 868 (2009) (discussing the role of judicial election activities when assessing recusals of judges); Republican Party of Minn. v. White, 536 U.S. 765, 806 (2002) (Ginsburg, J. dissenting) ( Judges... are not political actors. ). Section 2 of the Voting Rights Act ( VRA ) was amended in 1982 to include the word representatives. See Chisom, 501 U.S. at 383; see also 52 U.S.C There is little doubt that the ordinary meaning of representatives does not include judges. Chisom, 501 U.S. at 410 (Scalia, J. dissenting). The definition of representative has not changed substantially since Chisom was decided in See generally representative Merriam-Webster Online Dictionary, 2017, representative Dictionary.com, 2017, Furthermore, [judges] do not sit as representatives of particular persons, communities, or parties; they serve no faction 5

6 Case 3:14-cv JJB-EWD Document /22/17 Page 6 of 21 or constituency. Republican Party of Minn., 536 U.S. at 806 (Ginsburg, J. dissenting); see Williams-Yulee, 135 S. Ct. at 1674 ( Unlike politicians, judges are not expected to be responsive to [the] concerns of constituents. ) (Ginsburg, J., concurring) (quoting McCutcheon v. FEC, 134 S. Ct (2014)). It is illogical to mandate that a judge serve a specific community of interest if a judge serves no faction or constituency. In Caperton, the Court said, [F]ears of bias can arise when without the consent of other parties a man chooses the judge in his own cause. And applying that principle to the judicial election process, there [is] serious, objective risk of actual bias.... Caperton, 556 U.S. at 870. Therefore, the Supreme Court s holdings since Chisom compel the conclusion that Section 2 of the VRA no longer applies to judicial elections because judges and judicial elections are so distinct from other types of elections. B. This Case Should Be Dismissed for Lack of Standing Because the Attorney General and the Governor Are Not Proper Defendants and Do Not Have the Power to Implement Any Remedy the Court May Order. Article III standing has three elements: 1) an injury in fact; 2) a causal connection between the injury and the conduct complained of such that the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and 3) it must be likely that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, (1992) (internal quotations and citation omitted). On May 12 th, 2017, the Court, at Plaintiffs request, voluntarily dismissed the Secretary of State from this case. Order Granting Motion to Dismiss (Doc. 69); Motion to Dismiss Defendant Secretary of State (Doc. 68). At that moment, the Court no longer had jurisdiction to hear the case. 6

7 Case 3:14-cv JJB-EWD Document /22/17 Page 7 of 21 The State of Louisiana is divided into three separate branches: legislative, executive, and judicial. La. Const. art. II, 1. Except as otherwise provided by th[e] [Louisiana] constitution, no one... branch[], nor any person holding office in one of them, shall exercise power belonging to either of the others. La. Const. art. II, 2. The Attorney General and the Governor are members of the executive branch. La. Const. art. IV, 1. The Attorney General and the Governor of Louisiana do not have the authority to create voting districts. See La. Const. art. IV, 5; La. Const. art. IV, 7; see also La. Const. art. III, 1. The legislative power is vested by the Louisiana Constitution in the State legislature. La. Const. art. IV, 1. The Secretary of State is the Chief Elections Official for the State of Louisiana. La. Const. art. IV, 7. Without the Legislature or the Secretary of State as a party, there is no one who can redress any favorable decision that the Court may order. See Lujan, 504 U.S. at Furthermore, the Governor and the Attorney General are not responsible for instituting at-large voting in Louisiana. Therefore the injury is not traceable to the challenged action of the defendant[s]. See id. C. Plaintiffs Have Not Shown Under the Gingles Preconditions That There Is Impermissible Vote Dilution in the 32nd JDC. In Thornburg v. Gingles the Supreme Court created a test to determine if at-large voting districts result in impermissible vote dilution. Thornburg v. Gingles, 478 U.S. 30 (1986). Such a test is required because [m]ultimember districts and at-large election schemes... are not per se violative of minority voters rights. Id. at 48. Unless all of the Gingles conditions are satisfied, the use of multimember districts generally will not impede the ability of minority voters to elect representatives of their choice. Id. at 48. To prevail in a vote dilution claim under the VRA, a minority group must demonstrate that: 1) it is sufficiently large and geographically compact to constitute a majority in a single-member district; 2) it is politically cohesive; 3) the white majority votes sufficiently as a bloc to enable it... to defeat the minority's preferred candidate; 7

8 Case 3:14-cv JJB-EWD Document /22/17 Page 8 of 21 and 4) under the totality of the circumstances the actions complained of result in unequal access to the electoral process. Id. at 46, Legislative enactments are presumed to be in good faith. See Miller v. Johnson, 515 U.S. 900, 916 (1995). For the following reasons, the Court erred in finding that the State violated the VRA by continuing the at-large 32nd JDC. i. The African American Residents of Terrebonne Parish are Not Sufficiently Large or Compact Enough to Create Single Member Districts that Comport with Traditional Districting Principals. VRA violations require a fact-intensive inquiry into the nature of the specific district in question. See generally Gingles, 478 U.S. at 46; Georgia v. Ashcroft, 539 U.S. 461, 484 (2003); League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 520 (2006) (Breyer, J., concurring in part and dissenting in part). The facts in this case overwhelmingly show that creating a minority-majority sub-district in the 32nd JDC is infeasible for three reasons. First, Plaintiffs Illustrative Plan violates the Equal Protection Clause of the 14th Amendment because it subordinates traditional race-neutral districting principals to race based considerations. See Miller, 515 U.S. at 904; Prejean v. Foster, 227 F.3d 504, 509 (5th Cir. 2000); see also Terrebonne at *19. To develop the Illustrative Plan Plaintiffs expert used census block level data. See id. at *18-19; (Dec. of Cooper, 17). However, this method was improper as Louisiana require[s] that parish level redistricting... use whole precincts. Precincts can be split only if using whole precincts alone cannot meet the traditional redistricting criteria. (Dec. of Hefner, 8); see La. Rev Stat. Ann. 18:532; La. Rev Stat. Ann. 18: Precinct level data (also called Voter Tabulation Districts ( VTDs )) is used because using census block data results in split precincts. See Vera v. Bush, 933 F. Supp. 1341, (S.D. Tex. 1996). Problems with splitting VTD s include notifying voters that they reside in different precincts and training new or additional election officials to work in precincts with altered boundaries as well as significant 8

9 Case 3:14-cv JJB-EWD Document /22/17 Page 9 of 21 confusion among voters and candidates. Id. at 1343, The Plaintiffs have done exactly what the Supreme Court cautioned against in Vera, specifically Plaintiffs substantially neglected traditional districting criteria such as compactness, that it was committed from the outset to creating majority-minority districts, and that it manipulated district lines to exploit unprecedentedly detailed racial data. Bush v. Vera, 517 U.S. 952, 963 (1996). The Illustrative Plan splits precincts a number of times (four times in Precinct 5 and three times in Precinct 1 (where the Plan maintained contiguity only by using rivers and creeks to connect census blocks)), the result of which could be mass confusion on the part of the voters and increased expense on the part of the Parish. (Second Supp. Dec. Hefner, 4-5). 3 As this Court has stated, the inquiry is as follows: If a plaintiff can show that the minority population has the potential to elect a representative of its choice in some single-member district which adheres to traditional redistricting principles, then the plaintiff has necessarily shown that the current at-large system is the cause of the minority population s political weakness. Terrebonne at *35 (emphasis added). However, the Court draws an improper distinction between Miller and Gingles. See id. at * If the Plaintiffs plan subordinates traditional districting principals under an equal protection analysis then it must also be true that the plan does not comply with traditional districting principals. Furthermore, this situation is distinct from the one raised in Cooper. In this case, the only way Plaintiffs can prove a violation of 2 of the VRA is to create a map that necessarily violates the Equal Protection Clause. See Cooper v. Harris, 137 S. Ct. 1455, (2017) ( [T]he Court determined that none of those proposed [maps] would have worked as advertised essentially, that the Plaintiffs you could have redistricted 3 Split #1 in Precinct 5 is particularly egregious in that it simply bifurcates precinct 76 for the sole purpose of grabbing additional African American voters to create enough voters to form a minority-majority district. 9

10 Case 3:14-cv JJB-EWD Document /22/17 Page 10 of 21 differently arguments failed on their own terms ) (quoting Easley v. Cromartie, 532 U.S. 234, (2001)); see also (Sec. Supp. Rep. of Hefner, 2-9). Second, the Illustrative Plan is not compact. Plaintiffs own expert has admitted that the plan proposed by Plaintiffs has a low compactness score under both the Polsby-Popper and Reock metrics. See Terrebonne at *25. This fact is dismissed by the Court because the scores compare favorably with the... scores of current State House Districts and current Louisiana Congressional districts. Id. The issue with the Court s summation is that the State House and Congressional districts were subject to pre-clearance under 5 of the VRA when they were last drawn. See (Supp. Dec. of Hefner, 6-7). Preserving minority-voting strength necessarily compromises the compactness of any plan. Id. Therefore, using the compactness scores from Louisiana House and Congressional elections are poor metrics with which to compare any new district drawn in the 32nd JDC. Absent any applicable baseline, the compactness scores of the Illustrative District are simply too low. Third, the use of minority-majority districts as a comparison within Terrebonne Parish is misguided because those districts violate the one-person one-vote requirement. For example, the Parish Council Plan 4 has two majority-minority or nearly majority-minority districts. See (Dec. of Cooper, 20). The deviation range in population equality from those two districts to the remaining districts is 12.69%. Id. It appears obvious that demographers underpopulated Districts 1 and 2 (the majority-minority districts) and overpopulated the remaining districts in order to achieve significant minority voting strength. See id. at Figure 7. [M]inor deviations from mathematical equality i.e., deviations under 10%--do not, by themselves, make out a prima facie case of invidious discrimination under the Fourteenth Amendment. Harris v. Ariz. Indep. 4 The Parish Council Plan and the Parish School Board Plan are nearly identical. See (Dec. of Cooper, 20). For purposes of this Memorandum they will be afforded the same treatment. 10

11 Case 3:14-cv JJB-EWD Document /22/17 Page 11 of 21 Redistricting Comm n., 136 S. Ct. 1301, 1303 (2016). By the Harris standard, a population deviation of over 10% is prima facie invidious discrimination, which both the Parish Council and School Board plans exhibit. See id. It is perplexing then that Plaintiffs and the Court would rely on the Parish Council and School Board Plans as exemplifying possible lawful districting in Terrebonne Parish. See Terrebonne at *16-17; (Dec. of Cooper, 18-20). If the nine district maps for the Parish Council and School Board were reviewed by a court under the one-person, one-vote requirements, it is likely that two majority-minority districts could not be maintained if the total deviation range for these jurisdictions properly remained under 10%. While the one-person, one-vote requirements do not apply to judicial elections, it is still a factor while conducting a Gingles analysis. Rodriguez v. Bexar County, 385 F.3d 853, n. 3 (5th Cir. 2004) ( The district court... expressed concern regarding the application of the Gingles threshold test to single-member districts.... [W]e are at a loss as to what other standard [for judicial elections] than Gingles might apply. ); 5 see also Wells v. Edwards, 347 F. Supp. 453, 454 (M.D. La. 1972), aff'd 409 U.S (1973); Baker v. Carr, 369 U.S. 186 (1962). Furthermore, while the population deviation range in the Illustrative Plan is 5.2%, this does not necessarily mean that the plan complies with the one person, one vote principle. Terrebonne at *27. Population deviations may be justified by legitimate considerations including traditional districting principals such as compactness and contiguity... and, before [Shelby], compliance with 5 of the Voting Rights Act. Harris, 136 S. Ct. at 1303 (internal citations and quotations omitted); see also Shelby County v. Holder, 133 S. Ct (2013). When a population variance is under 10%, a constitutional violation can still be shown if it is 5 This also is another example of how Chisom is hard to reconcile with Supreme Court decisions regarding equal population requirements not applying to judicial districts while still applying when analyzing Gingles preconditions in Section 2 cases involving judicial districts. 11

12 Case 3:14-cv JJB-EWD Document /22/17 Page 12 of 21 more probable than not that the deviation reflects the predominance of illegitimate reapportionment factors rather than legitimate considerations. Harris, 136 S. Ct. at 1304 (internal citations and quotations are omitted). Using census blocks to hunting and peck to accumulate majority African-American population while completely ignoring traditional districting principals and state law can hardly be considered legitimate considerations. See Cooper v. Harris, 137 S. Ct. at (describing how a mapmaker in that case made decisions in order to ensure that the district s racial composition would add up correctly. ). D. GINGLES TWO AND THREE. The Court s decision regarding Gingles two and three is likely to be reversed on appeal. Terrebonne at *46. Satisfaction of all three Gingles preconditions is necessary but not sufficient to establish liability. League of United Latin American Citizens v. Clements, 999 F.2d 831, 849 (5th Cir. 1993). As the Court acknowledges, in November 2014, Juan Pickett, a first-time judicial candidate who is black, was elected without opposition to an open seat on the 32nd JDC. Terrebonne at *15; see also (Exp. Rep. of Beychok, 7) ( In the summer of 2013, when it was announced that Judge Ellender would not be seeking another term as a District Judge, Mr. Pickett announced his intent to run for the seat. ). In fact, local news stories relied upon and cited by these experts indicate that Judge Pickett began actively pursuing his position in 2008 (immediately following those regularly scheduled judicial elections). (Exp. Rep. of Beychok, 7). Juan Pickett has been a member of the local community for a long period of time, served as President of the local bar association, and spent seventeen years as a prosecutor. See, e.g., (Exp. Rep. of Beychok, 6-8). He began seeking support in the legal community for his candidacy long before this lawsuit was filed. Id. Plaintiff Daniel Turner even testified that Juan Pickett was his candidate of choice. (Trial Tr. 191:4-18 March 14, 2017). 12

13 Case 3:14-cv JJB-EWD Document /22/17 Page 13 of 21 Yet the Court completely discounts these critical facts in coming to its conclusions in finding that running unopposed cuts against a finding that a minority-preferred candidate can be elected in the current at-large system. Terrebonne at *63. If there was racially polarized voting, it is hard to imagine that the unopposed election of Judge Pickett would not have been contested by a single eligible candidate of the white majority. Because the Court ignored this fact in an endogenous election to a seat in the jurisdiction directly at issue here the Court s finding that Plaintiffs satisfied all three Gingles factors is likely to be reversed on appeal. The exogenous elections relied upon by the Court are either mostly stale or are so far removed from elections in the 32nd JDC that it is difficult to argue those same voting patterns apply. 6 See Terrebonne at *43; see also (Exp. Rep. of Beychok). Among the minority candidates for judicial office, one was successful and uncontested for the 32nd JDC, while the other was unsuccessful in a three-way race for City Court judge. In other words, in the two most recent district judicial elections, minority candidates were successful in half of them. The Court came to an improper conclusion when it relied on exogenous elections when the long-term candidacy of an African American was successful in the 32nd JDC during the pendency of the litigation. E. TOTALITY OF THE CIRCUMSTANCES WEIGHS AGAINST THE LIABILITY FINDING The Court erred in finding that under the totality of the circumstances and the factors identified in the Senate Report accompanying the 1982 amendments to Section 2 weigh in favor of a finding that at-large voting for the 32nd JDC interacts with social and historical factors to cause an inequality in the political process for black voters. Terrebonne at *52. First, there was no allegation or evidence that there were racial appeals in judicial elections in Terrebonne Parish. There was no evidence before the Court that the 32nd JDC 6 The only exceptions to this are the 2014 elections in which fully 20% of the African American members of the local bar were candidates for judicial office. 13

14 Case 3:14-cv JJB-EWD Document /22/17 Page 14 of 21 administers justice in any racially discriminatory fashion. There was no evidence before the Court that the 32nd JDC engaged in racially discriminatory actions against any African- American member of the local bar, or issued rulings in any racially discriminatory manner against clients represented by African-American lawyers. And an African-American candidate was successfully elected to the 32nd JDC during this litigation, a campaign that appears to have had the support of both white and black members of the bar. Second, the Court erred when it gave insufficient consideration to controlling Fifth Circuit precedent pertaining to Louisiana s linkage interest. See Clements, 999 F.2d 831. Third, other factors weigh against a finding of vote dilution in the 32nd JDC. This includes the very small number of individuals available to be elected judge. See Terrebonne at *68-69 ( The Fifth Circuit has stated that... A functional analysis of the electoral system must recognize the impact of limited pools of eligible candidates on the number of minority judges that has resulted. ) (citing and quoting Clements, 999 F.2d at 865). There existed at the time of the election only 10 eligible African American attorneys in Terrebonne Parish eligible for election to the 32nd JDC. See Terrebonne at *70. Moreover, some thirty percent of the African Americans eligible to run for office are connected to judgeships in the Parish. Judge Pickett s wife is also an African-American attorney in the Parish and another African-American candidate was in a three-way contest for city court judge in the same election cycle. (Trial Tr. 122:19-20 March 17, 2017); Terrebonne at *43; (Exp. Rep. of Beychok, 7). The need to under-populate either of the Plaintiffs proposed minority districts while overpopulating all of the proposed majority white districts is also an additional factor the Court failed to balance in the totality of the circumstances test. In the Illustrative Plan, the four overpopulated districts are majority white, while the single overpopulated district, District 1, is 14

15 Case 3:14-cv JJB-EWD Document /22/17 Page 15 of 21 barely majority black. Terrebonne at *21. This population imbalance has the effect of overweighting African American votes in order to get to the result of a majority African American district. i. There is a Likelihood of Reversal on this Court s Application and Analysis of the State Linkage Interest Under the Controlling Authority in Clements The Court committed error when it nearly entirely discounted the controlling Fifth Circuit en banc ruling in Clements, 999 F.2d 831, as it pertains to Louisiana s linkage interest in an atlarge voting system for the 32nd JDC. The weight of the State s interest is a matter of law, not a question of fact that somehow will be described on a county-by-county basis. Id. at 871. That interest is weighed against proven dilution to assess whether such dilution creates 2 liability. (citing Houston Lawyers, 111 S. Ct. at 2381). The Court provides five reasons as to why Louisiana does not have a substantial linkage interest. Terrebonne at *72. However, the Fifth Circuit in Clements analyzes closely the role of district judges, finding that trials are presided over by judges acting alone and the only collegial decision-making in counties (or parishes) with more than one judge is the handling of some administrative matters. Clements, 999 F.2d at Furthermore, in the entirety of the Court s ruling, there is a complete absence of any allegations or evidence that justice is administered in a racially biased way. While it is true that the [c]ourt must weigh this linkage interest against proof of vote dilution, the mere assertion of the linkage interest is insufficient to defeat a Section 2 claim, Terrebonne at *72, the interest of the State here is more than a mere assertion. To begin with, [t]rial judges are elected by a broad range of local citizens, rather than by a narrow constituency. This electoral scheme balances accountability and judicial independence. Clements, 999 F.2d at 868. ( [The weight of a substantial state interest... is balanced against 15

16 Case 3:14-cv JJB-EWD Document /22/17 Page 16 of 21 localized evidence of racial vote dilution. This substantial state interest may be overcome only by evidence that amounts to substantial proof of racial dilution. Otherwise, the at-large election of district court judges does not violate 2. ). The Fifth Circuit in Clements further elucidated the substantial State linkage interest when it said, the state attempts to maintain the fact and appearance of judicial fairness that are central to the judicial task, in part, by insuring that judges remain accountable to the range of people within their jurisdiction. Clements, 999 F.2d at 869 (internal citations omitted). The inescapable truth is that the result sought by plaintiffs here would diminish minority influence. Minority voters would be marginalized, having virtually no impact on most district court elections. Given that district judges act alone in exercising their power, that use of the Voting Rights Act is perverse. Clements, 999 F.2d at (internal citations omitted) (emphasis in original). Furthermore, [u]nder the totality of the circumstances... breaking the link between the electoral base and the jurisdiction... would perversely lessen minority influence on the conduct of most litigation. Id. at 873. The totality of the circumstances is a balancing of factors and in weighing those factors, along with the State s substantial linkage interest, the Court erred when it decided that the State s linkage interest did not outweigh its conclusions under the Gingles preconditions. F. INTENTIONAL DISCRIMINATION FINDINGS (DISCRIMINATORY PURPOSE). The Court s finding that the timeline of events, taken as a whole, shows discriminatory intent is error. Failure to pass legislation creating sub districts does not automatically mean that the motivating purpose behind the failure of the legislation was to limit the opportunity of individuals to participate meaningfully and effectively in the political process. If this were true, every legislative proposal that failed could be used as evidence of discriminatory intent. 16

17 Case 3:14-cv JJB-EWD Document /22/17 Page 17 of 21 Indeed, this court recently dismissed such an argument involving the City of Baton Rouge. Hall v. Louisiana, 974 F. Supp. 2d 944 (M.D. La. 2013). The Court found that the failure to pass legislation was derelict and it also found that this was wholly within the legislature s legitimate sphere of actions. Id. at 957. Other courts have found that failure to adopt legislation is not evidence of racial discrimination. See Ne. Ohio Coal. for the Homeless v. Husted, No. 2:06- CV-896, 2016 U.S. Dist. LEXIS 74121, at *145 (S.D. Ohio June 7, 2016) (affirmed on this point at Ne. Ohio Coal. for the Homeless v. Husted, 837 F.3d 612, 667 (6th Cir. 2016)). There were legitimate debates within the legislature and the judiciary about the allocation of cases between the 32nd JDC, and the City Court, and analysis of the caseload over the twentyyear history of these discussions. There is simply no evidence that the legislature s failure to adopted a majority-minority sub district can form the basis of a violation of the VRA. G. PLAINTIFFS PROPOSED REMEDY VIOLATES THE TENTH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES. The court, in assessing the viability of a Section 2 claim, must carefully consider the impact that any remedial proposal would have on the judicial model enshrined in the state s constitution and laws. Nipper v. Smith, 39 F.3d 1494, 1531 (11 th Cir. 1994). Nothing in Section 2 of the VRA authorizes a federal court to impose upon a State an entirely new form of government by imposing a new method of electing judges. Louisiana retains the power to define the structure of its government... and the character of those who exercise government authority. Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). It is essential that Louisiana s authority to prescribe the qualification of [its] own officers [and] the manner of their election... should be exclusive and free from external interference, except so far as plainly provided by the U.S. Constitution. Taylor v. Beckham, 178 U.S. 548, (1900); see Boyd v. Nebraska, ex rel., Thayer, 143 U.S. 135, 161 (1982). This power lies at the heart of representative 17

18 Case 3:14-cv JJB-EWD Document /22/17 Page 18 of 21 government, and is reserved to the States under the Tenth Amendment. Gregory, 501 U.S. at 463; U.S. Const. art. IV., 3. The authority of a State to define itself as a sovereign, while not limitless, has force even as against the proscriptions of the Fourteenth Amendment. Id. at 460, 468. These same principles have been applied in Section 2 challenges to judicial election systems, and are applicable here. Clements, 999 F.2d at 872; See also Milwaukee Branch of the NAACP v. Thompson, 116 F.3d 1194, (7th Cir. 1997); Southern Christian Leadership Conference v. Session, 56 F.3d 1281, 1298 (11th Cir. 1995). Plaintiffs cannot satisfy their burden when the remedy offered is at odds with important state interests. Cousin v. Sundquist, 145 F.3d 818, 827 (6th Cir. 1998). Plaintiffs proposed remedy conflicts with the constitutional balance of authority between the federal government and the states, which is prohibited. Milwaukee, 116 F.3d at IV. DENIAL OF A STAY PENDING APPEAL WILL CAUSE IRREPARABLE INJURY TO THE STATE. The Court s order imposes at least three irreparable injuries on the State. First, enjoining the State from conducting elections under its current at-large system is an injury significant enough to warrant a stay. See Order, Perez v. Perry, No. 5:11-cv OLG-JES-XR (Entered: 09/13/2017) (Doc. No. 1559); Order, Perez v. Perry, No. 5:11-cv OLG-JES-XR (Entered: 09/13/2017) (Doc. No. 1560); see generally New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers); Maryland v. King, 567 U.S. 1301, 1301 (2012) (Roberts, C.J., in chambers). Second, Louisiana is irreparably injured if it is forced to go through the expense of either a special legislative session or a special election due to a federal court injunction without proper time to appeal. Furthermore, at the status conference held on September 12, 2017, Plaintiffs counsel stated that Plaintiffs would like a special election to be held for the judgeships in the 32 nd JDC to coincide with the 2018 congressional elections. A 18

19 Case 3:14-cv JJB-EWD Document /22/17 Page 19 of 21 state s election procedures cannot be halted without allowing adequate time for full appellate review. Purcell v. Gonzalez, 549 U.S. 1, 4 6 (2006). Such an action could open the State to significant liabilities. Finally, the possibility that the trial judges in Terrebonne Parish could be subject to a special election before the State has had an opportunity to pursue meaningful appellate review on the merits threatens to impact the administration of justice within the Parish since the terms of the incumbent judges remains an open question. V. A STAY PENDING APPEAL WILL NOT HARM THE PLAINTIFFS. A stay pending appeal will not harm the Plaintiffs. Louisiana has used at-large judicial districts in Terrebonne Parish since at least Clark v. Roemer, 751 F. Supp. 586, 588 (M.D. La. 1990). The Plaintiffs will not be irreparably injured by voting in the same at-large district where they have voted for at least the last 44 years. Id. There are no allegations or evidence in this case that justice in the Parish is administrated in a racially discriminatory fashion. There is no election slated for the 32nd JDC until 2020, although there is a possibility of special elections. (Reb. Dec. of Cooper, 7). There is currently a minority judge that serves for the 32 nd JDC, and he was a candidate of choice of at least one Plaintiff and other minorities throughout the Parish. See e.g., (Trial Tr. 191:4-18 March 14, 2017); (Trial Tr. 122:19-20 March 17, 2017). Plaintiffs will suffer no injury if a stay is granted pending appellate review. VI. A STAY PENDING APPEAL SERVES THE PUBLIC INTEREST. A stay pending appeal serves the public interest because it is necessary for the State to exercise its appellate rights while protecting the administration of justice in the Parish and preserving the election calendar including any special elections that the Governor may be required to order. At-large elections for district court judges reflect the preferences of the Legislature, which is in itself a declaration of the public interest. Virginian Ry. Co. v. Sys. 19

20 Case 3:14-cv JJB-EWD Document /22/17 Page 20 of 21 Fed n No. 40, 300 U.S. 515, 552 (1937). It is inconceivable to foresee the State holding elections under a plan that a federal judge ruled is discriminatory. However, that is the exact situation Terrebonne Parish will be in if a vacancy arises in the 32nd JDC. A stay will also prevent disruption of the administration of justice in the Parish, and from attempts by Plaintiffs to force a legislative special session and/or a Parish-wide special election, which would result in great expenditures of time and taxpayer dollars. Furthermore, the Illustrative Plan proposed by Plaintiffs results in a number of precinct splits, which will result in massive voter confusion. See Vera v. Bush, 933 F. Supp. 1341, (S.D. Tex. 1996). The public interest of Louisianans counsels heavily against proceeding with the case while an appeal is pending. CONCLUSION For the foregoing reasons the Defendants respectfully request that the Court grant Defendants Motion for Stay Pending Appeal. Dated: September 22, 2017 /s/ Jason Torchinsky Jason Torchinsky (pro hac vice) HOLTZMAN VOGEL JOSEFIAK TORCHINSKY PLLC 45 North Hill Drive, Suite 100 Warrenton, VA Phone: (540) Fax: (540) jtorchinsky@hvjt.law Counsel for the Defendants RESPECTFULLY SUBMITTED, /s/ Elizabeth Murrill Elizabeth Murrill (La. Bar Roll No ) Solicitor General 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 20

21 Case 3:14-cv JJB-EWD Document /22/17 Page 21 of 21 CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing pleading has been filed with the Clerk using the Court s CM/ECF system which will provide notice to all counsel of record. Baton Rouge, Louisiana, this 22nd day of September, /s/ Jason Torchinsky Jason Torchinsky (pro hac vice) HOLTZMAN VOGEL JOSEFIAK TORCHINSKY PLLC 45 North Hill Drive, Suite 100 Warrenton, VA Phone: (540) Fax: (540) jtorchinsky@hvjt.law /s/ Elizabeth Murrill Elizabeth Murrill (La. Bar Roll No ) Solicitor General 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 the Defendants 21