LOUISIANA TAKES A STEP BACK IN VOTING RIGHTS AFTER FUSILIER V. LANDRY

By: Maggie Daly

TABLE OF CONTENTS

I. INTRODUCTION

II. FACTS AND HOLDING

III. BACKGROUND

A. The Voting Rights Act Claim

1. At-large judicial districts minimize minority groups’ voting power.

2. Plaintiffs must be a protected class and establish racial bloc voting.

B. Intentional Discrimination Claim

IV. THE FIFTH CIRCUIT’S DECISION

A. The plaintiffs clearly had standing.

B. Louisiana’s interest in maintaining at-large election system outweighed vote dilution concerns, so no violation of the Voting Rights Act occurred.

3. Gingles Preconditions: Compactness and Racially Polarized Voting

4. Totality of Circumstances

C. Despite decades of legislative history indicating the opposite, Louisiana lawmakers did not have discriminatory intent in designing the policy.

V. ANALYSIS

A. The court should have focused on Black voters’ preference for judicial candidates, rather than on the race of the judicial candidates.

B. Louisiana’s linkage interest is not actually substantial, and the court leveraged a weak policy justification to rationalize biases toward Black voters and judges.

C. The court incorrectly re-weighed the evidence and should have considered the pandemic and imminence of the election before interfering.

VI. CONCLUSION

I. INTRODUCTION

Black voters in Louisiana’s Terrebonne Parish have been fighting for over two decades to protect their voting rights[1] in elections for a state court comprised of all white, male judges for fifty years. Significantly, one judge in particular was reelected in November 2020 after being suspended from the judiciary for appearing in blackface and a prison jumpsuit, further evidencing the racist culture surrounding the court system.[2] In 2017, a federal district court agreed that Terrebonne Parish’s state court judicial elections had been maintained with discriminatory intent to dilute Black voting power, in violation of the Voting Rights Act.[3] However, in Fusilier v. Landry, the Fifth Circuit disregarded procedural rules, the testimony of seven experts, and 350 exhibits that proved racial discrimination, in order to reverse the district court’s remedial plan. In so doing, the Fifth Circuit ignored its own and Supreme Court precedent. The plaintiffs recently filed a petition for en banc review.

This Note, along with discussing these decisions, also recommends a review of Fusilier, especially given the significant implications the pandemic had on voting rights in the 2020 presidential election.[4] Section II of this Note provides the facts and procedural history that gave rise to the Fifth Circuit decision. Next, Section III explains the legal background surrounding the Voting Rights Act and relevant intentional discrimination claims that have arisen from election systems. Section IV outlines the Fifth Circuit’s rationale for reversing the district court’s decision. Finally, Section V examines the holding’s deviation from federal civil procedure rules and jurisprudence, analyzes how implicit biases impacted the court’s reasoning, and discusses the impact of the decision on the upcoming election.

II. FACTS AND HOLDING

In 2014, four Black Terrebonne Parish residents and the Terrebonne Parish NAACP filed suit against Louisiana’s Governor and Attorney General, in their official capacities, in the United States District Court for the Middle District of Louisiana to challenge the discriminatory nature of the at-large electoral system used to elect judges to Louisiana’s 32nd Judicial District Court (32nd JDC).[5]

The 32nd JDC is a Louisiana state court with jurisdiction over Terrebonne Parish,[6] and no Black candidate has ever been elected in a contested election to the 32nd JDC, or to any other contested at-large elected position in the parish, despite the parish population growing from 15.47% Black in 1980 to 18.9% Black in 2010.[7] The 32nd JDC has five judges who serve six-year terms, and their elections are conducted at-large, which means that all voters in the parish vote for all five judges,[8] rather than splitting the parish into districts that vote on only one representative judge. The plaintiffs asserted that the at-large election system (1) provided Black minority voters in Terrebonne Parish less opportunity to elect judges in violation of Section 2 of the Voting Rights Act (VRA)[9] and (2) had been maintained for a discriminatory purpose in violation of the Fourteenth and Fifteenth Amendments to the U.S. Constitution.[10]

The United States District Court for the Middle District of Louisiana upheld both claims.[11] Reasoning that the substantial and discriminatory dilution of Black votes in the at-large district outweighed any state interest in keeping the at-large system, the district court ordered a Special Master create a districting plan to comport with federal and state law.[12] The plan recommended splitting the parish into five districts that would each elect one judge, including one majority-Black district.[13] After the Attorney General’s objection to the plan, the district court adopted the single-member districts anyways, because the districts had appropriate size and compactness, reflected existing organization of voters, and represented communities of interest.[14] The court then commanded the Governor and Attorney General to implement district-based elections.[15]

In 2019, the Attorney General appealed to the Fifth Circuit to determine whether the plaintiffs had standing and to challenge the district court’s findings of vote dilution and intentional racial discrimination.[16] The Fifth Circuit held the at-large elections had not violated the VRA by diluting minority votes and that state legislators did not maintain the districting policy because of discriminatory intent.[17]

III. BACKGROUND

A. The Voting Rights Act Claim

  1. At-large judicial districts minimize minority groups’ voting power.

Courts have “long recognized that multimember districts and at-large voting schemes may ‘operate to minimize or cancel out the voting strength of racial [minorities in] the voting population.’”[18] After public lynching, poll taxes, and literacy tests which were used to prevent Black people from voting were outlawed, creating at-large election districts[19] became an effective and legal method for white Southerners to minimize Black voters’ political power.[20] At-large election districts, can dilute a minority group’s voting power “such that the group’s ability to elect its preferred candidate is diminished or eliminated.”[21] Because it allows a majority race or party to elect all the representatives for that district, at-large voting eliminates “the potency of the minority’s votes.”[22] Further, at-large districts can dilute minority votes similarly to the “time-honored gerrymandering technique[s]”[23] known as packing, “the practice of filling a district with a supermajority of a given group or party,”[24] and cracking, “the splitting of a group or party among several districts to deny that group or party a majority in any of those districts.”[25]

The Supreme Court has recognized that vote dilution with a discriminatory purpose “cuts down the right to vote as certainly as denial of access to the ballot.”[26] In an effort to prevent early forms of outright voter discrimination, Congress passed the Voting Rights Act of 1965, thus putting into operation the Fifteenth Amendment of the United States Constitution,[27] which states that “the right of citizens of the United States to vote shall not be denied or abridged on account of race, color, or previous condition of servitude.”[28] Section 2 of the Voting Rights Act provides, in part, that states shall not impose or apply a voting qualification or procedure that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”[29] This amended statutory language is known as the “results test” because plaintiffs alleging a Section 2 violation must only prove that an effect of an election law is to deny or abridge the right to vote on the basis of race, and plaintiffs are not required to prove discriminatory intent.[30] Thus, Section 2 implicitly prohibits racial vote dilution, which may be accomplished by creating election districts that disperse (crack) or concentrate (pack) the votes of a minority group so that their votes do not influence election outcomes.[31] Historically Section 2 has allowed minority groups to advocate for majority-minority districts,[32] election districts in which a minority group comprises the majority of the district so that the group has increased voting power in electing representatives for that district.

Section 2’s limits on vote dilution apply to the election of judges as well as other elected officers and representatives.[33] In Chisom v. Roemer, the Supreme Court noted that Louisiana’s system of electing state supreme court justices from specific districts (rather than appointments) indicated that the judges are essentially representatives of their districts so they are unable to be “indifferent to popular opinion,” thus extending the Voting Rights Act to judicial elections.[34]

Created “to rid the country of racial discrimination in voting,”[35] Section 2 of the Voting Rights Act is violated if members of a protected class “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”[36] One circumstance that courts consider in evaluating if a voting system violates Section 2 is “the extent to which members of a protected class have been elected to office,” but the Voting Rights Act does not establish a “right to have members of a protected class elected in numbers equal to their proportion in a population.”[37]

2. Plaintiffs must be a protected class and establish racial bloc voting.

Courts assess Section 2 challenges to at-large election districts using the preconditions from Thornburg v. Gingles.[38] In Gingles, Black voters in North Carolina challenged a redistricting plan for state legislative districts.[39] The Supreme Court held that the at-large districts caused Black voters to have “less opportunity than white voters to elect representatives of their choice.”[40] The Court emphasized that the election of a few Black candidates did not preclude a Section 2 violation simply because of sporadic or serendipitous benefits to minority voters.[41] The Court provided a new set of preconditions for plaintiffs representing a protected class; they must be able to demonstrate that the minority group is: (1) “sufficiently large and geographically compact to constitute a majority in a single-member district,” (2) “politically cohesive,” and (3) “that the white majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority’s preferred candidate.”[42]

After satisfying the Gingles preconditions, plaintiffs alleging a Section 2 violation must demonstrate that the totality of circumstances does not provide a minority group “the same opportunities to participate in the political process and elect representatives of their choice enjoyed by other voters.”[43] Courts use factors from the Senate Report that accompanied amendments to the Voting Rights Act to assess the totality of circumstances.[44] The Senate factors include: (1) history of official discrimination in the state, (2) the extent of racially polarized voting, (3) the extent of voting procedures that enhance opportunities for discrimination, (4) whether minority candidates have been denied access to candidate slating, (5) the extent that discrimination against minority groups in education, employment and health hinders their ability to participate in the political process, (6) whether campaigns have been characterized by racial appeals, and (7) the extent to which members of a minority group have been elected to public office.[45] No single Senate factor is dispositive, and when divergent voting patterns between white and minority voters are connected to voters’ party affiliation, plaintiffs will likely not establish racial bloc voting.[46]

In League of United Latin American Citizens, Council No. 4434 v. Clements, voters challenged Texas’s judicial election system.[47] The Fifth Circuit held that, although the Texas judiciary did not reflect the racial makeup of the Texas population and Texas has a history of racial discrimination, the judicial districts did not violate the VRA.[48] In support of its reasoning, the court held that Texas had a substantial interest in maintaining the election system, which outweighed localized evidence of racial vote dilution.[49] The court stated that Texas had a historical interest in judicial districts with a “broad base” that maintain an “appearance of judicial fairness,” and the state’s interest in linking electoral and jurisdictional bases should be a factor[50] included among the totality of circumstances.[51]

B. Intentional Discrimination Claim

To prove an election system violates the Fourteenth[52] and Fifteenth Amendments, plaintiffs only need to prove that discrimination has been one motivating factor,[53] but not necessarily the “primary purpose” of maintaining the system.[54] Together, these Amendments protect the right to vote, no matter voters’ “race, color, or previous condition of servitude.”[55] That right to vote “encompasses protections against dilution of the vote as well as the right to cast a ballot.”[56] In the landmark reapportionment case Reynolds v. Sims, the Supreme Court held that the Fourteenth Amendment’s Equal Protection Clause provides for “one person, one vote,”[57] and that the right to vote has historically been “denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.”[58]

Determining whether an official action, surrounding voting or otherwise, was enacted with a discriminatory purpose may be a “problematic undertaking,”[59] because “in this day and age we rarely have legislators announcing an intent to discriminate based upon race, whether in public speeches or private correspondence.”[60]

Thus, circumstantial evidence is relevant to determine lawmakers’ intent.[61] In Village of Arlington Heights v. Metropolitan Housing Development Corporation, a housing development corporation challenged a denial of their rezoning request for integrated housing in a suburb of Chicago, alleging that the denial was racially discriminatory and in violation of the Fourteenth Amendment.[62] Holding that a discriminatory purpose was not a motivating factor in the Village’s decision, the Supreme Court developed five “non-exhaustive”[63] factors to evaluate whether a discriminatory purpose motivated the enactment of a policy: (1) whether the policy affects one race more than another, (2) the historical background of the policy, (3) the “specific sequence leading up to the challenged decision”[64] (4) departures from the normal procedural and substantive sequence, and (5) the legislative or administrative history, especially “contemporary statements by members of the decision making body, minutes of its meetings, or reports.”[65] Courts use these factors to analyze racial motivation in official actions.[66] Upon a showing that legislators were motivated by a discriminatory purpose, “the burden shifts to the law’s defenders to demonstrate that the law would have been enacted” even without discriminatory motivation. [67]

IV. THE FIFTH CIRCUIT’S DECISION

A. The plaintiffs clearly had standing.

Although both Louisiana’s Attorney General and Governor were defendants in the initial lawsuit, only Attorney General Landry appealed the order requiring single-member districts. The Attorney General argued in part that the plaintiffs did not establish an injury in fact that was traceable to the challenged action and redressable by a favorable ruling.[68] The Fifth Circuit held that the plaintiffs “plainly” had standing against the Governor, because he was a defendant in many previous voting rights cases and played a “pivotal role” in enacting voting legislation.[69] However, the court did not address whether the Attorney General was an appropriate party.[70]

B. Louisiana’s interest in maintaining at-large election system outweighed vote dilution concerns, so no violation of the Voting Rights Act occurred.

The court stated that a “searching and practical review of the electoral conditions in Terrebonne Parish [wa]s required to evaluate” whether the vote dilution claim about the at-large system met each of the Gingles preconditions and satisfied the totality of circumstances standard.[71] The court specified that the district court did not err in its assessment of the preconditions: numerosity, compactness, and racially polarized voting. However, the court ultimately held that Louisiana’s linkage interest in retaining at-large elections outweighed the vote dilution, and thus, the district court erred in finding a violation of the Voting Rights Act.[72]

1. Gingles Preconditions: Compactness and Racially Polarized Voting

In considering the numerosity of the Black community residing in the 32nd JDC, the court noted that the Black population must constitute a simple majority of the relevant geographic area,[73] and that the group (regardless of voter turnout) would be numerous enough to “constitute a majority in a single-member district.”[74] Because the proposed district would include a 50.4% Black voting-age population, the numerosity precondition was satisfied.[75] In considering the compactness precondition, the court noted that the proposed district split most of the voting precincts, scored low on compactness matrices, and had a horseshoe shape in order to achieve the required demographics.[76] However, because the district’s shape resembled other political districts in the area, the court conceded that towns, roads and bayous formed “natural barriers to traditional districting.”[77] The Fifth Circuit deferred to the district court’s finding that the new district was compact because it “maintained communities of interest, contained contiguous districts, protected incumbents and respected the principle of one person one vote.”[78]

The court considered the second and third Gingles preconditions together. It reasoned that the unopposed election of one Black judge (Judge Juan Pickett) to the 32nd JDC in 2014 refuted data from twenty years of elections in which Black voters’ preferred candidate lost every time.[79] Although election results from 1993 to 2014 indicated racial vote polarization, the court criticized those results for not being recent enough to represent contemporary patterns[80] and because of the scarcity of minority candidates “qualified” to run for the 32nd JDC.[81] However, the court eventually deferred to the district court’s finding of racially polarized voting.[82]

2. Totality of Circumstances

In assessing the totality of the circumstances, the Fifth Circuit indicated that the plaintiffs’ position concerning the Gingles preconditions was weak immediately after deferring to the district court’s holding in favor of the plaintiffs on those factors.[83] The court then argued that Louisiana has a strong interest in maintaining the link between a judge’s jurisdiction and constituency.[84] Leveraging the Fifth Circuit’s reasoning in LULAC, the court explained that the “inescapable truth” was that the new district for which the plaintiffs were advocating would actually result in Black voters having virtually no impact on court elections.[85]

The district court provided five reasons Louisiana’s linkage interest was insubstantial,[86] but the Fifth Circuit swiftly dismissed each reason as “either legally infirm or factually wrong.”[87] The court provided the district court’s finding no deference, arguing that the issue of the substantiality of the state’s linkage interest was legal, rather than factual.[88] First, the Fifth Circuit stated that the fact that Louisiana’s Constitution does not require at-large elections for district court judges and permits different election schemes was “immaterial” unless the state actually uses the alternative schemes.[89] Next, the court dismissed the district court’s second, third and fourth reasons that there is an insubstantial state interest because the district court relied on the Clark settlement, and Clark was decided after LULAC (which held that Texas’ linkage interest was significant).[90] The court then stated that, despite the fact that the majority of judges in Louisiana are elected in subdistricts, the majority of JDCs, other than the many subdistricted JDCs that resulted from Clark, still use at-large elections.[91] The presence of at-large systems indicated Louisiana had a significant interest in at-large elections for district court judgeships.[92] The court dismissed the final reason for an insubstantial interest—a Louisiana Supreme Court task force recommendation for subdistricts to ensure judicial diversity—because the task force did not represent the will of the state and used findings that were over twenty years old.[93]

The court then weighed the linkage interest against the evidence of vote dilution. It reasoned that, because (1) there were no “overt or subtle racial appeals” in the elections, (2) the polarized voting occurred in only decades-old elections in which Black judges were not candidates, and (3) Black voter turnout lagged behind white voter turnout, Louisiana’s interest in maintaining at-large district outweighed the “weak” vote dilution findings.[94] Thus, the court held that the 32nd JDC elections did not violate the Voting Rights Act.[95]

C. Despite decades of legislative history indicating the opposite, Louisiana lawmakers did not have discriminatory intent in designing the policy.

In evaluating the finding that a discriminatory purpose motivated maintenance of the at-large election system for the 32nd JDC, the Fifth Circuit noted that the district court applied the five Arlington Heights factors to find a discriminatory purpose; however, the Fifth Circuit did not apply the factors itself.[96] Instead, it defended state lawmakers’ intent and applied a broad presumption of good faith to the repeated attempts by state legislators to strike down local advocates’ proposed districting changes, which began in 1997.[97] The court stated that the district court “ignored obvious practical, non-racial concerns about the creation of new judgeships,” “did not afford Louisiana’s legislature its entitled presumption of good faith, overemphasized speculative, circumstantial evidence, and minimized the testimony of those public officials directly involved in opposing changes to the 32nd JDC.”[98] The court declared that repeated denial of advocates’ proposed district changes did not impute racial motives to local officials and held that the district court clearly erred in finding discriminatory intent.[99]

V. ANALYSIS

A. The court should have focused on Black voters’ preference for judicial candidates, rather than on the race of the judicial candidates.

First, the issue in Fusilier was whether and how Black voters in Terrebonne Parish can vote for the judicial candidate of their choice. However, the court only analyzed the presence of Black candidates in judicial elections. Rejecting the plaintiffs’ evidence of vote dilution, the Fusilier court focused on the fact that many of the elections were uncontested, concluding that the dilution was the result of “the fact that only a few members of the minority class are eligible to be elected to the 32nd JDC.”[100]

However, the Voting Rights Act protects against laws lessening the ability of members of minority groups to elect representatives of their choice and participate in the political process.[101] The opportunity for a group to elect the representatives of its own choosing is known as substantive representation.[102] Further, the Voting Rights Act specifically notes that nothing in the Act “establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.”[103] The election of members of a protected class is known as descriptive representation.[104]

Therefore, the Voting Rights Act protects substantive representation of a class, rather than descriptive. To justify holding that the Voting Rights Act was not violated, the Fifth Circuit overemphasized one election of a Black judge, Judge Pickett, who ran unopposed, arguing that his election outweighed decades of racially polarized voting in the district.[105] Although descriptive and substantive representation often “overlap” when the goals of Black constituents and Black representatives coincide, in the event that those goals diverge, “substantive representation can only be guaranteed by electing accountable leadership.”[106] Thus, the court’s focus on the fact that few Black judges ran for office is not determinative of whether the kind of representation protected by the Voting Rights Act was available for Black voters in the district.

Racial diversity on the judicial bench provides “legitimacy to the narratives and values of racial minorities”[107] and impartiality based on a “cross-section of perspectives and values from the community.”[108] However, President and Director-Counsel of the NAACP Legal Defense Fund, Sherrilyn A. Ifill argued that it is essential not only to increase “cosmetic diversity, but to increase the number of judges who can authentically articulate and legitimate the perspectives and values of ‘outsider voices’ in judicial decision making.”[109] Reducing the “exclusion of outsider voices from judicial decision-making, rather than just the exclusion of outsider faces from the judiciary,” in addition to mandatory education programs for judges to examine their stances and biases, will help all judges engage multiple perspectives in their decision making.[110] Providing electoral opportunity to outsider voices plus judicial encouragement of a diverse bench would improve the 32nd JDC’s impartiality and decision-making.

Second, the fact that Black judges may have been precluded from running for office does not negate the presence of vote dilution. In Clark v. Calhoun County, the Fifth Circuit argued that, although few Black residents had run for office in that district, that fact does answer the question of whether Black residents in Mississippi had the same opportunities to “participate in the political process and elect representatives of their choice enjoyed by other voters.”[111] Similarly, in Westwego Citizens for Better Government v. City of Westwego, the Fifth Circuit explicitly noted the fact that few or no Black citizens had run for office did not preclude a claim of vote dilution, and “to hold otherwise would allow voting rights cases to be defeated at the outset by the very barriers to political participation that Congress has sought to remove.”[112] In contrast, the Fifth Circuit panel in Fusilier failed to consider these structural barriers to political participation Black voters face and instead weighed evidence that had no bearing on whether vote dilution is occurring in the 32nd JDC elections.

B. Louisiana’s linkage interest is not actually substantial, and the court leveraged a weak policy justification to rationalize biases toward Black voters and judges.

There is precedent for court-ordered judicial sub-districting in Louisiana. Although the Fusilier court referenced[113] a footnote in LULAC to support its assertion that the state has a “general interest in conducting at-large elections,” that LULAC footnote actually stated that Louisiana had “recently abandoned” that interest[114] after the 1990 Clark settlement. In Clark v. Roemer, Black voters and lawyers challenged a number of Louisiana’s at-large judicial elections because they violated Section 2 of the Voting Rights Act.[115] The court reaffirmed its earlier finding that at-large districts in many parishes violated Section 2 and held that a consent decree creating subdistricts was the appropriate remedy,[116] thereby rejecting the substantial linkage interest or that “any such interest outweighed the Court’s finding of vote dilution.”[117]

Although the Fusilier court argued that the LULAC holding is controlling law, the panel in LULAC expressly noted that a “substantial state interest is not inherently preclusive of dilution and is not raised to disprove the existence of dilution. Rather, the state’s interest is weighed against proven dilution to assess whether such dilution creates § 2 liability.”[118] The court held that Texas’s linkage interest was substantial because Texas residents, concerned for judicial independence, have a “substantial interest in defining the structure and qualifications in their judiciary,”[119] suggesting that the judges elected by majority white voters are somehow more qualified and accountable to all their constituents.

The LULAC court’s racial bias comes to a head in the conclusion, where it rationalizes its decision to prevent racial minorities from having a voice in judicial elections by demeaning the presence and success of Black law students at Louisiana State University:

The Voting Rights Act is not an unbridled license to explore for example the persistent low enrollment of black law students. . . . This year the law school at Louisiana State University graduated the largest number of black students in its history. This followed intensive recruiting efforts including the inducement of a free education—with stipends. Of the several hundred students graduated, ten were black. This sad story can be repeated at school after school. We are told that this is not relevant. We think that it is.[120]

This sad aside fails to include relevant context about Black students’ admission into law schools. Although Louisiana State University began admitting Black students to the school of law in 1950, LSU’s president in the 1950s and 1960s infamously wrote a segregationist report to the Board of Supervisors and a letter to the University of Texas president stating that he did not want Black students to attend LSU.[121] Judge Higginbotham, who was also on the panel in Fusilier, wrote the above aside in the LULAC opinion and did not attend law school with any Black law students who could go on to become judges.[122] Additionally, the University of Texas School of Law, located in the state where LULAC’s holding would be implemented, only began admitting Black law students in 1950 after the Supreme Court unanimously held that the segregated Texas State University for Negroes was not equal to the University of Texas School of Law.[123]

The Fusilier court, like the LULAC court, leveraged thinly-veiled white supremacist reasoning to bolster its holding:

Unlike many public offices, judgeships are foreclosed to most of the population, not because the majority defines who is qualified at the ballot box, but because those qualifications are set by law. The Louisiana Constitution sets the qualifications for district court judges, requiring domicile in the district for one year and admittance to the state bar for at least eight years. In Terrebonne Parish, just a handful of minority citizens—about ten, according to the district court—meet those qualifications (to say nothing of the number of qualified minority lawyers in the plaintiffs’ proposed remedial district).[124]

It is not clear if or how the panel investigated the actual number of qualified Black lawyers in the proposed district before dismissing the possibility that creating the opportunity to elect Black judges may inspire more Black students in the district to pursue law, thereby qualifying for future judicial positions. Notably, the judge who wrote the Fusilier opinion graduated the University of Texas School of Law in 1974 and was recently investigated for racial bias in her public speeches.[125] Additionally, the current bench for the 32nd JDC includes a judge who was reelected after the Louisiana Supreme Court disciplined him for appearing in blackface and an orange jumpsuit.[126] Although the Fifth Circuit’s assertion that Black judges face systemic barriers beginning long before entering law school is correct, the existence of those systems should not shape the laws preventing Black voters from electing the judges of their choice.

C. The court incorrectly re-weighed the evidence and should have considered the pandemic and imminence of the election before interfering.

The Fusilier court also incorrectly substituted its judgment for the district court’s when it evaluated the totality of circumstances and lawmakers’ discriminatory intent. In Veasey v. Abbott, the Fifth Circuit stated that the absence of direct evidence such as a “let’s discriminate” email . . . is not dispositive,” but that “it is not an appellate court’s place to weigh evidence. Thus, since there is more than one way to decide this case, and the right court to make those findings is the district court, we must remand.”[127] Conversely, in Fusilier the Fifth Circuit inappropriately weighed evidence surrounding legislative intent when it reevaluated each piece of legislation that failed to pass in the Louisiana legislature and provided a broad presumption of good faith for the lawmakers, despite direct and circumstantial evidence of discriminatory intent provided in the district court’s decision.[128] Additionally, “findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.”[129] Thus, if there was more than one way to decide the case, the court should have remanded the case to the right court, the district court.

In their petition for en banc review, the plaintiffs also noted that the court erred when it penalized the plaintiffs for failing to show one of the Senate factors, rather than addressing the fact that the plaintiffs successfully proved seven of the other nine non-dispositive factors.[130] The United States Supreme Court has previously reprimanded and reversed the Fifth Circuit for inappropriately weighing facts surrounding intentional discrimination and subsequently rendering judgment rather than remanding. In Pullman-Standard v. Swint, the Court admonished the Fifth Circuit for incorrectly reversing a case when it concluded that the district court erred by “not consider[ing] all relevant evidence” and “might have reached a different conclusion had it properly considered the evidence.”[131] The Supreme Court emphasized that discriminatory intent is a fact subject to the Rule 52(a) clear error standard; thus, “when a district court’s finding on such an ultimate fact is set aside for an error of law, the court of appeals is not relieved of the usual requirement of remanding for further proceedings to the tribunal charged with the task of factfinding in the first instance.”[132] The Court then cautioned the Fifth Circuit against providing an “independent consideration of the totality of circumstances,”[133] exactly the error the plaintiffs noted in their en banc petition.

Although determining legislative motives is a difficult and political task, the Supreme Court has noted that voiding existing law because of discriminatory intent has “stakes [that] are sufficiently high for us to eschew guesswork.”[134] The Fusilier court’s unsubstantiated rationalization to justify decades of Louisiana legislators repeatedly striking down proposed legislation to benefit Black voters in the 32nd JDC was guesswork without factfinding, and the Fifth Circuit should have instead deferred to the district court’s findings of discriminatory intent.

Finally, courts and election officials should strive to “preserv[e] the status quo on the eve of an election”[135] in part because conflicting court orders can “result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.”[136] Because the 32nd JDC election was scheduled to occur less than five months after the Fusilier decision, the Fifth Circuit should have refrained from reversing the Special Master’s plan. The Supreme Court has also noted that, “under certain circumstances, such as where an impending election is imminent and a State’s election machinery is already in progress, equitable considerations might justify a court in withholding the granting of immediately effective relief in a legislative apportionment case, even though the existing apportionment scheme was found invalid.”[137] Although the 32nd JDC election in November 2020 was just over four months after the Fusilier decision, the Fifth Circuit failed to examine any equitable policy considerations relevant to the election, including the COVID-19 pandemic and the fact that their decision would overturn an existing remedial districting plan that had been in place since April 2019.[138]

VI. CONCLUSION

Substantive representation and the impact of a diverse bench are essential considerations in the justice system, and diluting Black voters’ influence in electing judges will have long-lasting effects in the 32nd JDC and the entire nation as the United States confronts structural racism and white supremacy. The decision in Fusilier should be reviewed by the entire Fifth Circuit not only because of the panel’s legal errors, but also because of the social and political opportunity this case presents for the country’s current reckoning on race and political power.

  1. Black Louisianians are not alone in fighting for voting rights against Republican efforts to restrict them. The 2020 presidential election and Republican backlash to their candidate’s defeat provided additional illumination of the strategies Republican candidates and attorneys general have historically leveraged for minimizing Black voters’ influence on elections, while also targeting judicial intervention cities with large Black and Latino populations. See Jim Rutenberg and Nick Corasaniti, Republicans Rewrite an Old Playbook on Disenfranchising Black Americans, N.Y. Times (Nov. 22, 2020), https://www.nytimes.com/2020/11/22/us/politics/trump-republicans-black-voters.html. Their efforts are ongoing, widespread, and will have political implications for decades. See Tarisai Ngangura, Georgia Republicans are Going All-In on Voter Suppression, Vanity Fair (Dec. 8, 2020), https://www.vanityfair.com/news/2020/12/georgia-republicans-are-going-all-in-on-voter-suppression; Anthony Izaguirre and Christina A. Cassidy, Despite Smooth Election, GOP Leaders Seek Vote Restrictions, A.P. News (Dec. 26, 2020), https://apnews.com/article/election-2020-joe-biden-donald-trump-voting-rights-elections-82cd5b52e924b818bb8d8db80edba44b; Joseph Tanfani and Simon Lewis, As Trump Pushes Baseless Fraud Claims, Republicans Pledge Tougher Voting Rules, Reuters (Dec. 21, 2020), https://www.reuters.com/article/us-usa-election-voting-rules-insight-idUSKBN28V1DN.
  2. See Terrebonne Par. Branch NAACP v. Jindal, 274 F. Supp. 3d 395, 416 (M.D. La. 2017), rev’d sub nom. Fusilier v. Landry, 963 F.3d 447 (5th Cir. 2020). This judge, Judge Ellender, was reelected to the 32nd JDC for a six-year term in November 2020 along with another incumbent judge. The other three judicial seats on the court were uncontested in 2020. Dan Copp, Terrebonne Elects Two Judges, Houma Today (Nov. 4, 2020), https://www.houmatoday.com/story/news/2020/11/04/terrebonne-elects-two-judges/6057787002/.
  3. See Terrebonne Par. Branch NAACP v. Jindal, 274 F. Supp. 3d 395, 416 (M.D. La. 2017), rev’d sub nom. Fusilier v. Landry, 963 F.3d 447 (5th Cir. 2020).
  4. Before the general election, the pandemic disrupted voter registration, postponed primary elections and inspired lawmakers to work to change mail-in voting rules, in some cases to restrict which ballots would be accepted. See Jason A. Abel, Voting in an Era of Crisis 45 Hum. Rts. 2, 3 (2020). The Supreme Court upheld a Wisconsin law that reduced an absentee-ballot extension that could have provided voters additional time to submit their ballots, despite a surge in requests for absentee ballots because of the contagious virus. Republican National Committee v. Democratic National Committee, 140 S.Ct. 1205 (2020). Although 29 states increased access to mail-in voting because of the COVID pandemic, six states including Louisiana instituted laws restricting voting access for the 2020 election, and additional restrictions will likely be implemented in 2021 because of the number of well-known politicians lying about voter fraud. Voting Laws Roundup 2020, Brennan Center (Dec. 8, 2020), https://www.brennancenter.org/our-work/research-reports/voting-laws-roundup-2020-0. Despite broad Republican support, dozens of cases seeking to disenfranchise voters who mailed in their ballots have failed in the weeks since the 2020 election. On The Docket: November 2020, Democracy Docket (Nov. 2020), https://www.democracydocket.com/category/otd/.
  5. Terrebonne Par. Branch NAACP v. Jindal, 274 F. Supp. 3d 395, 407 n.1 (M.D. La. 2017), rev’d sub nom. Fusilier v. Landry, 963 F.3d 447 (5th Cir. 2020). The individual plaintiffs were Reverend Vincent Fusilier, Lionel Myers, Daniel Turner, and Wendell Desmond Shelby, Jr.; the Governor at the time was Piyush “Bobby” Jindal, and the Attorney General at the time was James “Buddy” Caldwell. Id.
  6. Terrebonne Parish extends starting south of New Orleans through the bayous, includes Parish seat Houma, and ends at the Gulf of Mexico. Fusilier v. Landry, 963 F.3d 447, 452 (5th Cir. 2020).
  7. Terrebonne Par. Branch NAACP, 274 F. Supp. 3d at 412-13. During that same time period, Terrebonne Parish changed from 79.25% to 68.65% non-Hispanic White residents. Id. at 413.
  8. Id. at 413.
  9. 52 U.S.C. § 10301.
  10. The plaintiffs in Terrebonne Parish Branch NAACP brought the discriminatory purpose constitutional claims in addition to the discriminatory effect claims in order to require that Louisiana would have to submit any redistricting plans for the 32nd JDC to the United States Department of Justice under Section 3(c) of the VRA. See 52 U.S.C. § 10302(c); see also Terrebonne Par. Branch NAACP, 274 F. Supp. 3d at 411 n.29.
  11. Terrebonne Par. Branch NAACP, 274 F. Supp. 3d at 407 (“The Court finds that at-large voting for the 32nd JDC deprives black voters of the equal opportunity to elect candidates of their choice” and “has been maintained for that purpose.”).
  12. See Terrebonne Branch NAACP v. Jindal, No. 3:14-CV-69-JJB-EWD, 2019 WL 4398509, at *7 (M.D. La. Apr. 29, 2019), report and recommendation adopted sub nom. Terrebonne Par. Branch NAACP v. Edwards, 399 F. Supp. 3d 608 (M.D. La. 2019).
  13. See id. at *5-8. The recommended single-member districts were based off existing Parish Council districts. Id.
  14. See Terrebonne Par. Branch NAACP v. Edwards, 399 F. Supp. 3d 608, 614-17 (M.D. La. 2019).
  15. See id. The Attorney General appealed to the United States Court of Appeals, Fifth Circuit, and in 2017 the court granted the plaintiffs’ motion to dismiss without prejudice to allow the appeal “at a later juncture.” Fusilier v. Edwards, No. 17-30756, 2017 WL 8236034, at *1 (5th Cir. Nov. 14, 2017).
  16. Fusilier v. Landry, 963 F.3d 447, 453 (5th Cir. 2020).
  17. Id. at 467. The court also held that the plaintiffs had standing. Id.
  18. Thornburg v. Gingles, 478 U.S. 30, 47 (1986) (quoting Burns v. Richardson, 384 U.S. 73, 89 (1966)).
  19. At-large (or multimember) election districts are election districts where voters elect more than one representative. See Kevin Sette, Are Two Minorities Equal to One?: Minority Coalition Groups and Section 2 of the Voting Rights Act, 88 Fordham L. Rev. 2693 (2020). Unlike at-large systems, single-member district systems divide voters so that each district elects one representative. See The Constitutional Significance of the Discriminatory Effects of at-Large Elections, 91 Yale L.J. 974, 999 (1982).
  20. See Molly P. Matter, The Shaw Claim: The Rise and Fall of Colorblind Jurisprudence, 18 Seattle J. for Soc. Just. 25, 33 (2020).
  21. Kevin Sette, Are Two Minorities Equal to One?: Minority Coalition Groups and Section 2 of the Voting Rights Act, 88 Fordham L. Rev. 2693, 2704 (2020).
  22. Shelby Cty., Ala. v. Holder, 570 U.S. 529, 563 (2013) (Ginsburg, J., dissenting).
  23. Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831, 834 (2015).
  24. Vieth v. Jubelirer, 541 U.S. 267, 287 (2004).
  25. Id.
  26. Shelby Cty., Ala. 570 U.S. at 563 (Ginsburg, J., dissenting) (citing Shaw v. Reno, 509 U.S. 630, 640–64 (1993)); Allen v. State Bd. of Elections, 393 U.S. 544, 569 (1969); Reynolds v. Sims, 377 U.S. 533, 555 (1964).
  27. See Deborah F. Buckman, Annotation, Construction and Application of Voting Rights Act’s Vote Dilution Provision, Voting Rights Act of 1965, § 2, 42 U.S.C.A. § 1973—Supreme Court Cases, 51 A.L.R. Fed. 2d 447 (2010).
  28. U.S. Const. amend. XV.
  29. 52 U.S.C. § 10301(a).
  30. See Jonathan C. Augustine & Hon. Ulysses Gene Thibodeaux, Forty Years Later: Chronicling the Voting Rights Act of 1965 and Its Impact on Louisiana’s Judiciary, 66 La. L. Rev. 453, 460 (2006); see also Frank R. Parker, The “Results’ Test of Section 2 of the Voting Rights Act: Abandoning the Intent Standard, 69 Va. L. Rev. 715, 723 (1983).
  31. See Deborah F. Buckman, Annotation, Construction and Application of Voting Rights Act’s Vote Dilution Provision, Voting Rights Act of 1965, § 2, 42 U.S.C.A. § 1973—Supreme Court Cases, 51 A.L.R. Fed. 2d 447 (2010).
  32. See Franita Tolson, Increasing the Quantity and the Quality of the African-American Vote: Lessons for 2008 and Beyond, 10 Berkeley J. Afr.-Am. L. & Pol’y 313, 322 (2008).
  33. See Houston Lawyers’ Ass’n v. Attorney Gen. of Texas, 501 U.S. 419, 426 (1991) (“It is equally clear, in our opinion, that the coverage of the Act encompasses the election of executive officers and trial judges whose responsibilities are exercised independently in an area coextensive with the districts from which they are elected.”); Chisom v. Roemer, 501 U.S. 380, 404 (1991) (“Today we. . . hold that state judicial elections are included within the ambit of § 2 as amended.”).
  34. Chisom v. Roemer, 501 U.S. 380, 401 (1991).
  35. South Carolina v. Katzenbach, 383 U.S. 301, 315 (1966).
  36. 52 U.S.C. § 10301(b).
  37. Id.
  38. League of United Latin Am. Citizens, Council No. 4434 v. Clements (LULAC), 999 F.2d 831, 849 (5th Cir. 1993).
  39. See Thornburg v. Gingles, 478 U.S. 30, 80 (1986).
  40. Id.
  41. See id. at 76.
  42. Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986). Notably, the Court provides that a minority group could establish the third circumstance if “submergence in a white multimember district impedes its ability to elect its chosen representatives.” Id. at 51.
  43. LULAC, 999 F.2d 831, 849 (5th Cir. 1993).
  44. Deborah F. Buckman, Annotation, Construction and Application of Voting Rights Act’s Vote Dilution Provision, Voting Rights Act of 1965, §2, 42 U.S.C.A. § 1973—Supreme Court Cases, 51 A.L.R. Fed. 2d 447 (2010).
  45. S. Rep. No. 97-417, at 28-29, as reprinted in 1982 U.S.C.C.A.N. 177, 206-07. “Additional factors that in some cases have had probative value as part of plaintiffs’ evidence to establish a violation are: whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group, whether the policy underlying the state or political subdivision’s use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.” Id.
  46. Evidence of racially polarized voting is also required to satisfy the Gingles preconditions. See LULAC, 999 F.2d at 861.
  47. Texas’s judicial elections were at-large: held county-wide, and voters elected judges for multiple different trial courts in each county. See id. at 837-38.
  48. See id. at 868.
  49. Id.
  50. LULAC, 999 F.2d 831, 868 (5th Cir. 1993). The court also noted that twenty-five of the twenty-nine states that elect their trial court judges use district-wide elections, which demonstrates that district-wide elections are “integral to the judicial office and not simply another electoral alternative,” while also noting that “tradition, of course, does not make right of wrong, but we must be cautious when asked to embrace a new revelation that right has so long been wrong.” Id. at 872.
  51. In reasoning that courts should evaluate a state’s linkage interest, the LULAC court emphasized a vague idea from Justice O’Connor’s concurring opinion in Gingles, which asserted that, even when their votes are diluted such that they are always “cast for losing candidates;” Thornburg v. Gingles, 478 U.S. 30, 98-99 (1986) (O’Connor, J., concurring); minority voters may somehow “influence” the political process in ways other than voting or winning elections. LULAC, 999 F.2d 831, 873 (5th Cir. 1993).
  52. The Fourteenth Amendment provides that no state “shall deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV.
  53. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66 (1977); see also United States v. Brown, 561 F.3d 420, 433 (5th Cir. 2009) (internal citations and quotation marks omitted) (“[R]acial discrimination need only be one purpose, and not even a primary purpose, of an official act for a violation to occur . . . .”).
  54. United States v. Brown, 561 F.3d 420, 433 (5th Cir. 2009) (quoting Velasquez v. City of Abilene, Tex., 725 F.2d 1017, 1022 (5th Cir. 1984)). See also Terrebonne Par. Branch NAACP v. Jindal, 274 F. Supp. 3d 395, 454 (M.D. La. 2017), rev’d sub nom. Fusilier v. Landry, 963 F.3d 447 (5th Cir. 2020).
  55. U.S. Const. amend. XV, § 1.
  56. Frank R. Parker, The “Results” Test of Section 2 of the Voting Rights Act: Abandoning the Intent Standard, 69 Va. L. Rev. 715, 718–19 (1983).
  57. Id.
  58. Reynolds v. Sims, 377 U.S. 533, 555 (1964).
  59. Hunter v. Underwood, 471 U.S. 222, 228 (1985).
  60. Veasey v. Abbott, 830 F.3d 216, 235 (5th Cir. 2016).
  61. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).
  62. Id. at 258.
  63. Terrebonne Par. Branch NAACP v. Jindal, 274 F. Supp. 3d 395, 454 (M.D. La. 2017), rev’d sub nom. Fusilier v. Landry, 963 F.3d 447 (5th Cir. 2020).
  64. Vill. of Arlington Heights, 429 U.S. at 267 (the court provides an example of a specific sequence that would indicate intent: “if the property involved here always had been zoned R-5 but suddenly was changed to R-3 when the town learned of MHDC’s plans to erect integrated housing”).
  65. Id. See also Terrebonne Par. Branch NAACP v. Jindal, 274 F. Supp. 3d 395, 454 (M.D. La. 2017), rev’d sub nom. Fusilier v. Landry, 963 F.3d 447 (5th Cir. 2020).
  66. See, e.g., Hunter v. Underwood, 471 U.S. 222, 232 (1985).
  67. Hunter v. Underwood, 471 U.S. 222, 228 (1985).
  68. Fusilier v. Landry, 963 F.3d 447, 453-54 (5th Cir. 2020).
  69. Id. at 454.
  70. In his concurring opinion, Judge Kyle Duncan argued that the Governor and Attorney General did not have legal duties in administering judicial elections, so the issue could not be traceable to them, nor could the injury be redressed by an order against them. Therefore, Judge Duncan stated that the plaintiffs did not have standing to sue them, and he argued the court should have vacated the injunction and instead remanded with instructions to dismiss. See id. at 468 (Duncan, J., concurring).
  71. Id. at 456.
  72. Id. at 467.
  73. Fusilier v. Landry, 963 F.3d 447, 456 (5th Cir. 2020) (citing Bartlett v. Strickland, 556 U.S. 1, 18 (2009)).
  74. Fusilier, 963 F.3d at 457 (quoting LULAC, 999 F.2d 831, 849 (5th Cir. 1993)).
  75. Id. at 456-57.
  76. Id. at 457-58.
  77. Id.
  78. Id. at 457-58.
  79. Fusilier, 963 F.3d at 458-59.
  80. Expert witnesses analyzed election results from 1993 to 2014 to determine a pattern where white voters in Terrebonne Parish refused to support the minority-preferred candidates, so the elections were characterized by racially polarized voting. Terrebonne Par. Branch NAACP v. Jindal, 274 F. Supp. 3d 395, 433-36 (M.D. La. 2017), rev’d sub nom. Fusilier v. Landry, 963 F.3d 447 (5th Cir. 2020).
  81. Fusilier, 963 F.3d at 459.
  82. Id.
  83. Id. at 459.
  84. Id.
  85. Id. at 460.
  86. See Terrebonne Par. Branch NAACP v. Jindal, 274 F. Supp. 3d 395, 451-53 (M.D. La. 2017), rev’d sub nom. Fusilier v. Landry, 963 F.3d 447 (5th Cir. 2020) (“The Court is unpersuaded that Louisiana has a substantial linkage interest for five reasons.”)
  87. Fusilier, 963 F.3d at 460.
  88. Id. Later, the court instead describes the district court’s reasoning on this topic as “less than compelling,” id. at 462, so it is not clear which standard the Fifth Circuit used to evaluate the district court’s reasoning. The court also stated that a state’s linkage interest “lies at the heart of representative government and thus must be treated with great respect,” further confounding the standard of review issue. Id. at 460 (emphasis added).
  89. Fusilier v. Landry, 963 F.3d 447, 460 (5th Cir. 2020). The court notes that the state legislature approved a Black voter opportunity sub-district in 2020, but minimizes that legislative action because “no new sub-district’s were created; the legislature simply redistricted those already in existence, and the preexisting 14th JDC subdistricts were the result of the Clark litigation.” Id. at 460 n.10.
  90. Id. at 461. The Clark settlement created judicial subdistricts in other Louisiana parishes. The court rationalizes its dismissal of the prescriptive nature of the landmark Clark settlement and consent decree by calling it “nothing more than the resolution of a long-running and costly legal dispute over a few judicial district courts and in no way represented an abandonment of Louisiana’s more general interest in conducting at-large judicial elections.” Id.
  91. Other than judges in New Orleans. Id.
  92. Fusilier, 963 F.3d at 461.
  93. Id.
  94. Id. at 462. It is not clear why the court included the voter turnout information.
  95. Id. at 462-63.
  96. Fusilier v. Landry, 963 F.3d 447, 463 (5th Cir. 2020).
  97. See id. at 464.
  98. Id. at 466.
  99. Id. at 467.
  100. Fusilier v. Landry, 963 F.3d 447, 462 (5th Cir. 2020)
  101. 52 U.S.C. § 10301(b).
  102. See Franita Tolson, Increasing the Quantity and the Quality of the African-American Vote: Lessons for 2008 and Beyond, 10 Berkeley J. Afr.-Am. L. & Pol’y 313, 318 (2008).
  103. 52 U.S.C. § 10301(b).
  104. See Franita Tolson, Increasing the Quantity and the Quality of the African-American Vote: Lessons for 2008 and Beyond, 10 Berkeley J. Afr.-Am. L. & Pol’y 313, 318 (2008).
  105. Fusilier, 963 F.3d at 458.
  106. See Franita Tolson, Increasing the Quantity and the Quality of the African-American Vote: Lessons for 2008 and Beyond, 10 Berkeley J. Afr.-Am. L. & Pol’y 313, 318 (2008).
  107. Sherrilyn A. Ifill, Racial Diversity on the Bench: Beyond Role Models and Public Confidence, 57 Wash. & Lee L. Rev. 405, 410 (2000).
  108. Id. at 411.
  109. Id. at 487.
  110. Id. at 495.
  111. Clark v. Calhoun Cty., 88 F.3d 1393, 1398 (5th Cir. 1996).
  112. Westwego Citizens for Better Gov’t v. City of Westwego, 872 F.2d 1201, 1208 n.9 (5th Cir.1989).
  113. Fusilier v. Landry, 963 F.3d 447, 461 n.12 (5th Cir. 2020).
  114. LULAC, 999 F.2d 831, 872 n.33 (5th Cir. 1993) (“Mississippi and Louisiana only recently abandoned the link between jurisdiction and electoral base in order to settle prolonged litigation.”).
  115. Clark v. Roemer, 777 F. Supp. 445, 450 (M.D. La. 1990).
  116. See Clark, 777 F. Supp. at 468 (“The court reluctantly concludes that the subdistrict approach suggested by plaintiffs, with all of its attendant problems, represents the only proposal which will actually remedy the violations of Section 2 (short of devising an entirely different system). Election subdistricts will be drawn in those judicial districts where violations have been found.”).
  117. Terrebonne Par. Branch NAACP v. Jindal, 274 F. Supp. 3d 395, 452 (M.D. La. 2017), rev’d sub nom. Fusilier v. Landry, 963 F.3d 447 (5th Cir. 2020).
  118. LULAC, 999 F.2d at 871.
  119. LULAC, 999 F.2d at 872. The court in LULAC stated that Texas’s substantial interest was bolstered by policies in other states including Florida and Alabama (but excluding Louisiana in the footnote mentioned above).
  120. Id. at 893.
  121. Brooks Kubena, Troy H. Middleton’s Name Removed From LSU Library Hours After Board Approval, The Advocate (Jun. 19, 2020), https://www.theadvocate.com/baton_rouge/news/education/article_a50055f4-b23a-11ea-847e-fb4e868ff514.html.
  122. Judge Higginbotham Graduated in 1961 from the University of Alabama School of law, which began admitting Black students in 1972. Law School Commemorates 45th Anniversary of the First African-American Law Graduates,The University of Alabama: Alabama Law, https://www.law.ua.edu/blog/news/law-school-commemorates-45th-anniversary-of-the-first-african-american-law-graduates/ (last visited Nov. 20, 2020).
  123. Sweatt v. Painter, 339 U.S. 629, 636 (1950).
  124. Fusilier v. Landry, 963 F.3d 447, 462 (5th Cir. 2020) (internal citations omitted).
  125. See Ethan Bronner, Complaint Accuses U.S. Judge in Texas of Racial Bias, N.Y. Times (June 4, 2013), https://www.nytimes.com/2013/06/05/us/federal-judge-in-texas-is-accused-of-racial-bias.html. Notably, the third judge in the Fusilier panel has also been criticized for his biases in his legal work. See Andy Marra, Trump-Appointed Judge Refuses to Stop Misgendering a Defendant, Advocate (Jan. 24, 2020), https://www.advocate.com/commentary/2020/1/24/trump-appointed-judge-refuses-stop-misgendering-defendant.
  126. Terrebonne Par. Branch NAACP v. Jindal, 274 F. Supp. 3d 395, 416 (M.D. La. 2017), rev’d sub nom. Fusilier v. Landry, 963 F.3d 447 (5th Cir. 2020).
  127. Veasey v. Abbott, 830 F.3d 216, 241 (5th Cir. 2016) (internal citations omitted).
  128. See Fusilier, 963 F.3d at 464-66.
  129. Fed. R. Civ. P. 52(a).
  130. Plaintiffs-Appellees’ Petition for Rehearing En Banc at 14, Fusilier v. Landry (5th Cir. July 13, 2020) (No 19-30665). The court penalized the plaintiffs for not proving whether there were overt or subtle racial appeals in the elections.
  131. Veasey v. Abbott, 830 F.3d 216, 235 (5th Cir. 2016) (citing Pullman-Standard v. Swint, 456 U.S. 273, 284-85 (1982)).
  132. Pullman-Standard v. Swint, 456 U.S. 273, 293 (1982).
  133. Id. at 291-92.
  134. United States v. O’Brien, 391 U.S. 367, 383–84 (1968).
  135. Veasey v. Perry, 769 F.3d 890, 892 (5th Cir. 2014) (granting stay because changing Texas’ voter identification laws on the eve of an election would disturb the election process too close to the election).
  136. Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006).
  137. Reynolds v. Sims, 377 U.S. 533, 585 (1964).
  138. See Terrebonne Branch NAACP v. Jindal, No. 3:14-CV-69-JJB-EWD, 2019 WL 4398509, at *7 (M.D. La. Apr. 29, 2019), report and recommendation adopted sub nom. Terrebonne Par. Branch NAACP v. Edwards, 399 F. Supp. 3d 608 (M.D. La. 2019).