Case 3:14-cv JJB-EWD Document /23/17 Page 1 of 18 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA

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1 Case 3:14-cv JJB-EWD Document /23/17 Page 1 of 18 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA TERREBONNE BRANCH NAACP, et al., Plaintiffs, v. PIYUSH ( BOBBY ) JINDAL, the GOVERNOR of the STATE OF LOUISIANA, in his official capacity, et al., Defendants. Civil Action. No. 3:14-cv-69-JJB-EWD PLAINTIFFS MEMORANDUM REGARDING REMEDIES Plaintiffs 1 respectfully submit this memorandum in response to the Court s September 12, 2017 minute entry, which invited Plaintiffs to submit a proposal regarding the appropriate remedy for the court and legislature to take, following the Court s August 17, 2017 liability ruling. Doc In that ruling, the Court found that Louisiana s at-large voting method for electing the five members of the 32nd Judicial District Court (32nd JDC) the state court that exercises jurisdiction over Terrebonne Parish deprives Black voters of the equal opportunity to elect candidates of their choice in violation of Section 2 [of the Voting Rights Act of 1965], and it has been maintained for that purpose, in violation of Section 2 and [the Fourteenth and Fifteenth Amendments to the] United States Constitution. See Doc. 289 at 2. The liability ruling and the opportunity to brief the Court on potential remedies begin the necessary steps towards vindicating the voting rights of Plaintiffs and other Black voters in Terrebonne Parish. As the Court has recognized, the Louisiana Legislature is the body typically entrusted, with the Governor s consent, with determin[ing] the method of election for state courts like the 32nd JDC. Id. at 73. The legislature s next regularly scheduled session is between March 12 1 Plaintiffs are the Terrebonne Parish Branch NAACP, and individual Black voters, Rev. Vincent Fusilier, Sr., Lionel Myers, Daniel Turner, and Wendell Desmond Shelby, Jr. 1

2 Case 3:14-cv JJB-EWD Document /23/17 Page 2 of 18 and June 4, See La. State Legis., Future Session Information, The next regularly scheduled election for the 32nd JDC is in See Louisiana Secretary of State Tom Schedler, Elected Officials, ( By Parish dropdown list, select Terrebonne 55, scroll to 32nd Judicial District, Division A-E, see Exp. Date ). In that election, only three of the five sitting 32nd JDC judges will be eligible to run as incumbents because two of the current judges are subject to mandatory retirement. Doc. 289 at 31. As discussed below, it will be the legislature s duty, in the first instance, to ensure that the statutory and constitutional violations found by this Court are fully remedied. If the legislature does not do so in a timely manner, it will be up to this Court to implement such a remedy. I. Overview of the Law Governing the Court s Provision of a Remedy. a. This Court Must Ensure That the Violations That It Found Are Fully Remedied. Having found constitutional and statutory violations, this Court s first and foremost obligation is to ensure that the violations are fully remedied. Veasey v. Abbott, 830 F.3d 216, 269 (5th Cir. 2016), cert. denied, 137 S. Ct. 612 (2017) (citations omitted). Indeed, once a State s legislative apportionment scheme has been found to be unconstitutional, it would be the unusual case in which a court would be justified in not taking appropriate action to insure that no further elections are conducted under the invalid plan. Reynolds v. Sims, 377 U.S. 533, 585 (1964) (emphasis added). The Court must exercise its traditional equitable powers to ensure that Plaintiffs are afforded relief that completely remedies the prior dilution of minority voting strength and fully provides equal opportunity for minority citizens to participate and to elect candidates of their choice. Mississippi State Chapter, Operation Push v. Mabus, 932 F.2d 400, 406 (5th Cir. 1991) 2

3 Case 3:14-cv JJB-EWD Document /23/17 Page 3 of 18 (quoting the Senate Report accompanying the 1982 amendments to Section 2 of the Voting Rights Act of 1965, 1982 U.S. C.C.A.N. 177, 208). Indeed, the court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future. Louisiana v. United States, 380 U.S. 145, 154 (1965). The remedy for a finding of racially discriminatory intent is potentially broader than the one to which Plaintiffs would be entitled if there were only a finding of discriminatory effect. Veasey, 830 F.3d at 268 (citing, inter alia, Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, , 471, 487 (1982), which permanently enjoined a statewide initiative that was formulated with racially discriminatory intent)). To be sure, [a]n official action... taken for the purpose of discriminating... on account of... race has no legitimacy at all. City of Richmond, Virginia v. U.S., 422 U.S. 358, 378 (1975). As the Fourth Circuit recently explained, the remedy for a [constitutional violation] must completely cure the harm wrought, and [w]hile remedies short of invalidation may be appropriate if a provision violates the Voting Rights Act only because of its discriminatory effect, laws passed with discriminatory intent inflict a broader injury and cannot stand. N. Carolina State Conference of NAACP v. McCrory, 831 F.3d 204, 240 (4th Cir. 2016), cert. denied sub nom. North Carolina v. N. Carolina State Conference of NAACP, 137 S. Ct (2017). Further, as the Supreme Court has explained, once a court finds intentional racial discrimination, the constitutional violator is clearly charged with the affirmative duty to take whatever steps might be necessary to ensure that the racial discrimination [is] eliminated root and branch. Green v. Cnty. Sch. Bd. of New Kent Cnty., Va., 391 U.S. 430, (1968). 3

4 Case 3:14-cv JJB-EWD Document /23/17 Page 4 of 18 b. It Is the Louisiana Legislature s Duty, in the First Instance, to Remedy the Violations Promptly, and that Remedy Must Be Legally Valid and Constitutionally Sound. It is the Louisiana Legislature s responsibility, in the first instance, to enact an acceptable remedy. See Veasey, 830 F.3d at ( [W]hen feasible, our practice has been to offer governing bodies the first pass at devising remedies for Voting Rights Act violations. ) (citation omitted); Mississippi State Chapter, Operation Push, 932 F.2d at 406 ( [C]ourts clearly defer to the legislature in the first instance to undertake remedies for violations of 2. ). The Legislature must do so in a timely fashion. Wise v. Lipscomb, 437 U.S. 535, 540 (1978) ( When a federal court declares an existing apportionment scheme unconstitutional, it is therefore, appropriate, whenever practicable, to afford a reasonable opportunity for the legislature to meet constitutional requirements by adopting a substitute measure rather than for the federal court to devise and order into effect its own plan. ) (emphasis added). And, while this Court should provide the legislature with an opportunity to remedy the statutory and constitutional violations, that does not mean it should defer to the legislature in determining whether the remedy is adequate. On the contrary, the burden rests on the State to prove that its proposed remedy completely cures the harm. N. Carolina State Conference of NAACP, 831 F.3d at 240 (citing United States v. Virginia, 518 U.S. at 547, for the proposition that the defendant was obliged to show that its remedial proposal directly address[ed] and relate[d] to the violation ); see also Green, 391 U.S. at 439 ( The burden on [the entity violating the constitution] today is to come forward with a [remedial] plan that promises realistically to work, and promises realistically to work now. ). In other words, this Court must accept a plan offered by the Louisiana legislature for the method-of-election in the 32nd JDC, but only if it does not 4

5 Case 3:14-cv JJB-EWD Document /23/17 Page 5 of 18 violate statutory provisions or the Constitution. Mississippi State Chapter, Operation Push, 932 F.2d at (emphasis added) (citation omitted). A legislative plan cannot remedy a violation of the Voting Rights Act if the plan itself is racially motivated. Mississippi State Chapter, Operation Push, 932 F.2d at 407 (citing Kirksey v. Bd. of Supervisors of Hinds Cnty., Miss., 554 F.2d 139, 142 (5th Cir. 1977), superseded by statute on other grounds as stated in League of United Latin Am. Citizens, Council No v. Clements, 999 F.2d 831, 866 (5th Cir. 1993)). Nor can the plan remedy the violation if it would perpetuate the intentional discrimination found by this Court. As the Fifth Circuit has explained, Both the Supreme Court and this circuit have firmly held that where a reapportionment plan is formulated in the context of an existent intentional denial of access by minority group members to the political process, and would perpetuate that denial, the plan is constitutionally unacceptable because it is a denial of rights guaranteed under the Fourteenth and Fifteenth Amendments. Kirksey, 554 F.2d at 143. Notably, an interest in incumbent protection cannot justify a less-thancomplete remedy. Jeffers v. Clinton, 756 F. Supp. 1195, 1200 (E.D. Ark. 1990), aff d, 498 U.S (1991) ( The desire to protect incumbents, either from running against each other or from a difficult race against a black challenger, cannot prevail if the result is to perpetuate violations of the equal-opportunity principle contained in the Voting Rights Act. ). c. If the Louisiana Legislature Fails to Promptly and Completely Remedy the Harms that the Court Found, the Court Must Do So. If the Louisiana Legislature abdicates its responsibility to promptly cure the voting rights violations with a constitutional and legally valid remedy, or if it is not practical for that legislative body to act because of an imminent election, it becomes the unwelcome obligation of the Court to fashion a remedy. Wise, 437 U.S. at 540 (quoting Connor, 431 U.S. at 415); Mississippi State Chapter, Operation Push, 932 F.2d at 406 ( Judicial authority to fashion a plan of reapportionment arises only after the state legislature is given an opportunity to enact a constitutionally acceptable 5

6 Case 3:14-cv JJB-EWD Document /23/17 Page 6 of 18 plan and does not do so. ); Upham v. Seamon, 456 U.S. 37, 41 (1982) ( [J]udicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so. ) (citation omitted). Courts are held to stricter standards when crafting a remedy to a voting rights violation than a state legislature. See Connor, 431 U.S. at 414. Indeed, for a judicially-created remedy, equitable considerations demand a close scrutiny and mandate the fashioning of a near-optimal apportionment plan. Seastrunk v. Burns, 772 F.2d 143, 151 (5th Cir. 1985). Further, a court charged with crafting a remedy must accomplish its task circumspectly, and in a manner free from any taint of arbitrariness or discrimination. Id. at 415 (citation omitted). [T]o the extent possible, courts should respect a legislature s policy objectives when crafting a remedy. Veasey, 830 F.3d at 269. In fashioning a reapportionment plan or in choosing among plans, a district court should not... intrude upon state policy any more than necessary. Upham, 456 U.S. at (citation omitted). To avoid otherwise standardless decisions, a court, as a general rule, should be guided by the legislative policies underlying a state plan even one that was itself unenforceable to the extent those policies do not lead to violations of the Constitution or the Voting Rights Act. Perez, 132 S. Ct. at 941 (citations omitted) (emphasis added). A judicially-crafted remedy should be sufficiently tailored to the circumstances giving rise to the [Section] 2 violation. Veasey, 830 F.3d at 269 (citation omitted). Because [r]elief in redistricting cases is fashioned in the light of well-known principles of equity, [a] district court must undertake an equitable weighing process to select a fitting remedy for the legal violations 6

7 Case 3:14-cv JJB-EWD Document /23/17 Page 7 of 18 it has identified, taking account of what is necessary, what is fair, and what is workable. North Carolina v. Covington, 137 S. Ct. 1624, 1625 (2017). Notably, single-member districts are the preferred remedies in court-ordered plans. As the Supreme Court has explained: Because the practice of multimember districting can contribute to voter confusion, make legislative representatives more remote from their constituents, and tend to submerge electoral minorities and overrepresent electoral majorities, this Court has concluded that single-member districts are to be preferred in court-ordered legislative reapportionment plans unless the court can articulate a singular combination of unique factors that justifies a different result. Connor, 431 U.S. at 415 (citations omitted); McMillan v. Escambia Cnty., Fla., 688 F.2d 960, 971 (5th Cir. 1982), vacated on other grounds, 466 U.S. 48 (1984) ( The [Supreme] Court has generally disapproved of multimember district and at-large election schemes as components of a judicially fashioned remedy and has admonished district courts to employ single-member districts. ); White v. State of Ala., 74 F.3d 1058 (11th Cir. 1996) ( [T]he typical remedy for racial vote dilution yielded by at-large voting in a multi-member district is to divide the district into single-member districts if the plaintiff minority is sufficiently cohesive and compact to comprise a majority in one or more single-member districts) (citing Thornburg v. Gingles, 478 U.S. 30, 50 (1986)). Indeed, the Fifth Circuit has recognized that a court-ordered remedial plan that included a mix of single-member districts and at-large seats requires justification. Corder v. Kirksey, 585 F.2d 708, (5th Cir. 1978). A judicially-created remedy should also honor such traditional redistricting principles as minimizing disruption to traditional boundaries, compliance with the one-person, one-vote principle, maintaining communities of interest, contiguity, compactness, and non-dilution of minority voting strength. See generally League of Latin Am. Citizens v. Perry, 457 F. Supp. 2d 716 (E.D. Tex. Aug. 4, 2006) (adhering to traditional redistricting principles while crafting a 7

8 Case 3:14-cv JJB-EWD Document /23/17 Page 8 of 18 remedy for a Section 2 violation); see also United States v. Charleston Cnty., No. 2: , 2003 WL , at *2 (D.S.C. Aug. 14, 2003) (same). Finally, in judicial redistricting, as compared to legislative redistricting, compliance with the one person, one vote principle is not required. Doc. 289 at 27 & n.149 (citing Wells v. Edwards, 347 F.Supp. 453, 455 (M.D. La. 1972), aff d, 409 U.S However, population equality is an equitable consideration. Doc. 289 at 27 & n.150 (referencing Clark v. Roemer, 777 F. Supp. 445, 453 (M.D. La. 1990)). The Supreme Court s decisions have established, as a general matter, that an apportionment plan with a maximum population deviation under 10% falls within this category of minor deviations. Doc. 289 at 27; see also Voinovich v. Quilter, 507 US 146, 161 (1993) (citation omitted). d. This Court Can Order a Special Election to Remedy the Violations that It Found. Courts have ordered special elections to remedy voting rights violations. See McMillan, 688 F.2d at 971 (affirming the district court s remedial plan requiring a special election with all five seats open after the court reapportioned the jurisdiction at issue into five single-member districts to remedy unconstitutional vote dilution); Bell v. Southwell, 376 F.2d 659, 665 (5th Cir. 1967) (directing the district court to invalidate election results and order a special election after a voting rights violation where the next regularly-scheduled election was years away and noting, Clearly, the Federal Constitution and the Federal Courts are not so helpless or unresourceful as to condemn in words only to let go by default in fact such an open breach of constitutional demands. ); Toney v. White, 488 F.2d 310, 316 (5th Cir. 1973). That includes this Court, which has ordered special elections to cure the discrimination caused by at-large voting for judicial districts. See, e.g., Clark v. Roemer, 777 F. Supp. 471, 475, 483 (M.D. La. 1991) (ordering that special elections be conducted in October 1991 in majority- 8

9 Case 3:14-cv JJB-EWD Document /23/17 Page 9 of 18 Black subdistricts which have vacancies to remedy the Section 2 violations that this Court found with respect to judicial districts in Louisiana). Whether a special election is necessary in this case depends in part upon how quickly a remedy to the violations found by this Court is available, and the details of that remedial plan. e. This Court May Hold A Hearing On Remedies. This Court may hold a hearing before determining the appropriate remedy in this case. See, e.g., Mississippi State Chapter, Operation Push, 932 F.2d at 404 (referencing that the district court held an evidentiary hearing to consider whether proposed legislation was an adequate remedy); Clark, 777 F. Supp. at 475 (referencing evidentiary hearings held by the district court before determining the appropriate remedies to Section 2 violations). II. Plaintiffs Illustrative Plan Is A Viable Remedy Given this Court s thorough consideration of Plaintiffs Illustrative Plan in its liability ruling, see, e.g., Doc. 289 at 17-38, Plaintiffs provide only a brief discussion of why the Illustrative Plan is a viable remedy. Plaintiffs expert, William S. Cooper, who developed that plan, also provides an abbreviated discussion in his supporting declaration (attached as Exhibit 1). The Illustrative Plan divides Terrebonne into five [single-member] districts for the 32nd JDC and allows the black population [of Terrebonne]... to comprise a majority of the voting age population in one single member district (District 1). Doc. 289 at As this Court found, the black population [in Terrebonne] is sufficiently numerous and geographically compact to comprise a majority of the voting age population in one single member district in a five-district plan for the 32nd JDC, as reflected in the Illustrative Plan. Id. at 17. This Court also found that the Illustrative Plan provides for districts that are geographically compact and regular in shape. Id. at 23. Notably, the Court found that, while it is not necessary to engage in a Shaw v. Reno 9

10 Case 3:14-cv JJB-EWD Document /23/17 Page 10 of 18 analysis at the liability stage, the Illustrative Plan is not a racial gerrymander since the plan does not use race substantially more than is reasonably necessary to remedy the Section 2 violation; and, even if race had been the predominant factor in the Illustrative Plan, the plan would survive strict scrutiny because it is narrowly tailored to remedy a significant Section 2 violation. Id. at (quoting Clark v. Calhoun, 88 F.3d 1393, 1407 (5th Cir. 1996)). This Court recognized that the Illustrative Plan adheres to traditional redistricting principles. Doc. 289 at For example, District 1 is contiguous. Id. at 27. In addition, the Plan has an overall deviation from population equality of 5.2%, which is well within the 10% population deviation held as acceptable for redistricting purposes, and complies with the one person, one vote principle. Id. at 27. The Illustrative Plan also respects and maintains communities of interest and adequately minimizes precinct splits. Id. at 28, To the extent that the Illustrative Plan splits precincts, this Court found that these split precincts can be adequately accommodated by using lockouts, which are inexpensive and easily administered. Id. at The Court also found that the Illustrative Plan respects the traditional redistricting principle of incumbent protection. Id. at Indeed, as this Court recognized, Louisiana law does not require a candidate for a division of a district court to be domiciled within the precinct boundaries or any other geographic boundaries of that division. Id. at 31; see also id. at 31 n.76 (citing Snyder v. Perilloux, 198 So. 3d 237, 241 (La. Ct. App. 5th Cir. 2016) (en banc) aff d in relevant part and rev d in part on other grounds, 197 So. 3d 692 (La. 2016), in which the court found that a candidate who did not reside in the subdistrict for Division B of the 40th JDC, but resided in the 40th JDC, was qualified to run for that seat)). Thus, for an election to District 1 under Plaintiffs 10

11 Case 3:14-cv JJB-EWD Document /23/17 Page 11 of 18 Illustrative Plan, a 32nd JDC candidate could only be required to reside in the 32nd JDC and thus the Illustrative Plan protects incumbents. 2 Importantly, this Court recognized that the Illustrative Plan would constitute an effective remedy to the statutory and constitutional violations that it found since it would provid[e] black voters a reasonable opportunity to elect a candidate of their choice to the 32nd JDC for the first time since that court was created nearly 50 years ago. Doc. 289 at 33-34, n.187. III. Plaintiffs Illustrative Plan Is Consistent with Other Remedial Plans. By using single-member districts for all seats on the 32nd JDC, the Illustrative Plan is consistent with remedies that courts have found appropriate for at-large voting systems that prevented voters of color from having an equal opportunity to elect their candidates of choice. By contrast, courts have rejected plans that create one or two single-member districts while keeping the basic at-large system intact. In Goosby v. Town Board of Town of Hempstead, after finding a Section 2 violation with respect to a town s at-large voting method for electing members of the town board, the defendanttown proposed a 5-1 plan, i.e., a plan that included one single-member majority-minority district, and another multimember district that would elect the five other members of the town board. 981 F. Supp. 751, 754 (E.D.N.Y. 1997), aff d, 180 F.3d 476, 498 (2d Cir. 1999). The appellate court affirmed the district court s rejection of defendants proposal because it was not a genuine mixed system where all voters [are] treated the same in this respect: each voter would cast a vote for one or more representatives of the voter s district and one or more at-large representatives. 981 F. Supp. at 758. Indeed, the district court determined that: The two-district plan proposed here is not such a system. If adopted, the voters in the Town of Hempstead will not be treated the same. They will not receive a combination of district 2 As mentioned supra, in 2020, there will only be three incumbents potentially running for 32nd JDC seats, given the mandatory retirement of two sitting judges. Doc. 289 at

12 Case 3:14-cv JJB-EWD Document /23/17 Page 12 of 18 and at-large representation on the Town Board. To the contrary, the plan seeks to carve the Town into two groups of voters: one-sixth of the Town will have a district representative, whereas the remainder of the population will receive the quasi-at-large representation of five members who represent the other five-sixths of the Town. Id. (emphasis added). Accordingly, the district court ordered, and the appellate court affirmed, a six single-member redistricting plan for the town s election. 180 F.3d at 481, 498. In Harvell v. Blytheville Sch. Dist. No. 5, following a finding that an at-large electoral scheme for a school board violated Section 2, the defendant-school district proposed a 5-2 plan (with 5 single-member districts and two at-large seats and two of the single-member districts being majority-black districts). 126 F.3d 1038, (8th Cir. 1997). The plaintiffs proposed a plan comprised of eight single-member districts with three of the single-member districts being comprised of a majority of Black voters. Id. at The court adopted the plaintiffs proposed remedial plan. In affirming that decision, the appellate court emphasized that [t]he district court need not defer to a state-proposed remedial plan... if the plan does not completely remedy the violation or if the plan itself violates section 2 of the Act. Id. Moreover, the court of appeals explained that: The district court acknowledged its duty to adopt a plan that would steer clear of racial gerrymandering and yet would vindicate the rights of the minority voters within the School District. Given the history of voting practices within the school district, we cannot say that the district court erred in finding that the adoption of the [eight single-member redistricting] plan was necessary to accomplish both goals. Id. Indeed, [t]he inability of black voters to affect the at-large elections under the 5 2 plan is no different from what it was under the previous electoral scheme. The 5 2 plan thus creates an inequality in opportunity for black voters to participate in the political process and to elect representatives of their choice. Id. at The Illustrative Plan is also consistent with the methods-of-election for other judicial districts in Louisiana. Currently, at least the 18th, 27th, and 40th JDCs in Louisiana use only 12

13 Case 3:14-cv JJB-EWD Document /23/17 Page 13 of 18 single-member subdistricts to elect judicial members. Doc , Ex. B. at 55 (of 123); La. Rev. Stat. Ann (2016); Snyder v. Perilloux, 198 So. 3d 237, 241 (La. Ct. App. 5th Cir. 2016). IV. This Court May Order Louisiana to Comply with Section 3(c) of the Voting Rights. As this Court recognized, Louisiana, generally, and Terrebonne, specifically, have a long history of voting discrimination that extends into the present. Doc. 289 at 52. For example, [f]rom 1965 to 2013, Louisiana was a covered jurisdiction which had to seek preclearance under Section 5 of the [Voting Rights Act of 1965]. Id. Section 5 suspend[ed] all changes to a covered jurisdiction s election procedures, including district lines, until those changes [we]re submitted to and approved by a three-judge United States District Court for the District of Columbia, or the Attorney General. Perry v. Perez, 565 U.S. 388, 390 (2012) (citation omitted). This process, known as preclearance, require[d] the covered jurisdiction to demonstrate that its proposed change neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color. Id. (citing Section 5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c(a)). For the nearly 50 years while Louisiana was required to seek preclearance, the DOJ filed nearly 150 objections to proposed discriminatory changes, many of which blocked the use of atlarge voting. Doc. 289 at 53. In the late 80s and early 90s, those objections extended to the creation of at-large elected judgeships in areas where the black population was numerous enough to create a majority-black subdistrict. Id. And, [n]umerous courts have found that at-large systems for the election of judges violated Section 2. Id. at 54. Moreover, Louisiana federal courts have also found that Louisiana consistently ignored its preclearance requirements under Section 5. Id. 13

14 Case 3:14-cv JJB-EWD Document /23/17 Page 14 of 18 This history of discrimination includes Terrebonne specifically. As this Court explained, in the 1970s, a lawsuit was filed to create majority-black subdistricts for the Terrebonne Parish Council and School Board; that lawsuit resulted in majority black-subdistricts. Id. And, [i]n the early 1990s, the DOJ objected to a redistricting plan for the [Terrebonne] Parish Council which failed to create a third majority black subdistrict. Id. Louisiana adopted an at-large voting scheme for the 32nd JDC in 1968 three years after the passage of the Voting Rights Act of 1965 was enacted and increased black enfranchisement. Id. at 53. Since then, Louisiana has maintained this voting scheme for the 32nd JDC, despite decades-long attempts by the Black community to change that dilutive electoral method for that court and to institute, in its place, an electoral system that provides Black voters with the equal opportunity to elect their candidates of choice. Id. at Indeed, between , the Louisiana Legislature rejected six legislative proposals to change the electoral method for the 32nd JDC while white officials actively worked to defeat those proposals. Id. at Although the issue will not arise until after the illegal and unconstitutional vote dilution in the 32nd JDC is remedied, this Court may ultimately determine that Section 3 bail-in is appropriate here given that Louisiana and Terrebonne have a historical record of voting rights discrimination that extends, without interruption, to the present. Cf. Louisiana v. United States, 380 U.S. at 156 ( The need to eradicate past evil effects and to prevent the continuation or repetition in the future of the discriminatory practices shown to be so deeply engrained in the laws, policies, and traditions of the State of Louisiana, completely justified the District Court in entering the decree it did and in retaining jurisdiction of the entire case to hear any evidence of discrimination in other parishes and to enter such orders as justice from time to time might require. ). Section 3(c) provides, in pertinent part, that: 14

15 Case 3:14-cv JJB-EWD Document /23/17 Page 15 of 18 If in any proceeding instituted by the Attorney General or an aggrieved person under any statute to enforce the voting guarantees of the fourteenth or fifteenth amendment in any State or political subdivision the court finds that violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred within the territory of such State or political subdivision, the court, in addition to such relief as it may grant, shall retain jurisdiction for such period as it may deem appropriate and during such period no [voting change] different from that in force or effect at the time the proceeding was commenced shall be enforced unless and until the court [or the Attorney General] finds that such [voting change] does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the voting guarantees set forth in section 10303(f)(2) of this title U.S.C (c) (emphasis added.). Accordingly, this Court has the authority to issue an order pursuant to Section 3(c) of the Voting Rights Act, 52 U.S.C (c), retaining jurisdiction over this action and requiring Louisiana to obtain preclearance, for a necessary and appropriate period of time, from this Court or the U.S. Department of Justice for potentially any and all future changes in voting law impacting the 32nd [JDC], consistent with Plaintiffs prayer for relief in their Complaint. See Doc. 1 at Recently, a federal district court in Texas ordered Section 3(c) relief for [a]ny new City Council voting map, plan, or procedure, following its determination that the City of Pasadena s use of at-large voting for electing members to its city council intentionally diluted Latino voting strength and has the effect of denying Latino voters in Pasadena an equal opportunity to elect their candidates of choice in violation of Section 2 and the U.S. Constitution. Patino v. Pasadena, 230 F. Supp. 3d 667, (S.D. Tex. 2017); see also Final Judgment and Order of Injunction, Patino v. Pasadena, No. 4:14-cv-03241, ECF. No. 162 at *3-5 (S.D. Tex. Jan. 16, 2017) (the trial court requiring Pasadena to seek 3(c) review to any change to its election map or plan until June 30, 2023). During an appeal of the liability decision in that case, the parties settled the lawsuit and the City agreed to preclearance of its voting changes until City of Pasadena s Motion to 15

16 Case 3:14-cv JJB-EWD Document /23/17 Page 16 of 18 Dismiss Its Appeal With Prejudice, No , Doc (5th Cir. Oct. 17, 2017); Gabrielle Banks and Mike Snyder, Pasadena mayor pitches $1M settlement to end voting rights suit, Houston Chronicle (Sept. 29, 2017, 10:19 PM Updated), 1M-settlement-to-end php. 3 The history and ongoing record of voting discrimination in Louisiana and Terrebonne, including Louisiana s maintenance of at-large voting for members of the 32nd JDC, may similarly warrant Section 3 bail-in to protect against future violations of the Voting Rights Act, and the constitutional guarantees of the Fourteenth and Fifteen Amendments to the U.S. Constitution. V. Conclusion As this Court has recognized, [s]ince at least the late 1980s, beginning with the Clark litigation discussed above, advocates have fought to establish a subdistrict for the 32nd JDC because of their understanding that at-large voting for the 32nd JDC dilutes Black voting strength in Terrebonne. Doc. 289 at 78. Now, this Court has found that indeed, the at-large electoral scheme for the 32nd JDC causes statutory and constitutional harm. The Voting Rights Act of 1965 reflects Congress firm intention to rid the country of racial discrimination in voting. South Carolina v. Katzenbach, 383 U.S. 301, 315 (1966). Accordingly, in these remedial proceedings, this Court is obliged to do just that ensure that the unconstitutional racial vote dilution in Terrebonne Parish is eliminated root and branch. Green, 391 U.S. at In addition to the City of Pasadena, the City of Evergreen, Alabama, has recently agreed to comply with Section 3(c). See Allen v. City of Evergreen, 2014 WL , at *2 (S.D. Ala. Jan. 13, 2014); see also Brief of Amici Curiae Campaign Legal Center, NAACP Legal Defense and Educational Fund, Inc., Patino v. Pasadena, No , at *9 (5th Cir. May 31, 2017) (collecting other examples of court-ordered or voluntary bail-in as a result of consent decrees), available at: 16

17 Case 3:14-cv JJB-EWD Document /23/17 Page 17 of 18 Thus, in addition to ordering a remedial redistricting plan that completely remedies the violations that this Court found, Plaintiffs are entitled to other remedies consistent with the prayer for relief in Plaintiffs Complaint. Doc. 1 at Respectfully submitted this 23rd day of October, /s/ Ronald L. Wilson Ronald L. Wilson (LSBN 13575) 701 Poydras Street, Ste New Orleans, LA T: (504) / F: (504) cabral2@aol.com /s/ Leah C. Aden Leah C. Aden*, **, NAACP LDF Michaele N. Turnage Young* 40 Rector Street, 5th Floor New York, NY T: (212) / F: (212) laden@naacpldf.org Michael de Leeuw*, Cozen O Connor Alexander J. Selarnick* William Lesser* 45 Broadway, 16th Floor New York, NY T: (212) / F: (646) MdeLeeuw@cozen.com *PRO HAC VICE / **TRIAL ATTORNEY Counsel for Plaintiffs 17

18 Case 3:14-cv JJB-EWD Document /23/17 Page 18 of 18 CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing Plaintiffs Memorandum Regarding Remedies with this Court using the CM/ECF system, which provides notice of filing to all counsel of record. Dated: October 23, 2017 /s/ Leah C. Aden LEAH C. ADEN NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 40 Rector Street, 5th Floor New York, NY (212) (212) (fax) Attorney for Plaintiffs 18