middle district of louisiana terrebonne branch naacp, civil action. no. 3:14-cv … ·...

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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’ RESPONSE TO DEFENDANTS’

PROPOSED FINDINGS OF FACT & CONCLUSIONS OF LAW

1. As set forth in Plaintiffs’ Proposed Findings of Fact and Conclusions of Law (“Proposed

Findings”), Plaintiffs have proven, by the preponderance of the evidence, that at-large voting for

the 32nd JDC has the discriminatory effect of diluting Black voting strength and has been

maintained with a discriminatory purpose, in violation of Section 2 and the Fourteenth and

Fifteenth Amendments. See generally Doc. 284. Defendants’ Proposed Findings of Fact and

Conclusions of Law provide no ground for concluding otherwise. See generally Doc. 285.

Defendants present an assortment of insubstantial arguments that either conflict with or ignore

binding precedent, focus on immaterial facts, mischaracterize the record, find no support in their

own experts’ testimony, rely on excluded evidence, or otherwise ignore uncontroverted, material

evidence that supports Plaintiffs’ claims. Accordingly, this Court should conclude that Plaintiffs

have established liability and proceed with the remedial phase of this case.

JURISDICTION

2. Defendants contend, for the first time after more than three years of litigation, that Plaintiffs

lack standing to challenge at-large voting for the 32nd JDC. Id. at 2-22. This argument must be

rejected. See NiGen Biotech, LLC v. Paxton, 804 F.3d 389 (5th Cir. 2015) (“[T]hat [the state

Case 3:14-cv-00069-JJB-EWD Document 287 06/19/17 of 46

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attorney general’s contention on standing] is late-raised reduces the credibility of the AG’s

argument and disserves the efficiency of the judicial process.”); see also Doc. 284 ¶ 279 n.21.

3. Plaintiffs have standing to bring their claims. As set forth in Plaintiffs’ Proposed Findings,

the individual Plaintiffs are Black registered voters who have been unable to elect their candidates

of choice in multiple at-large, parish-wide elections, including for the 32nd JDC. Doc. 284 ¶¶ 3,

179 & n.85. The dilution of the individual Plaintiffs’ right to vote is a cognizable injury for

standing. O’Hair v. White, 675 F.2d 680, 688 (5th Cir. 1982) (en banc) (an “injury to [a plaintiff’s]

fundamental right to vote” constitutes an “injury in fact”); see also Baker v. Carr, 369 U.S. 186,

207-08 (1962) (vote dilution is a “legally cognizable injury”).1

4. Defendants contend that Plaintiffs have not shown an injury in fact because they have been

1 Terrebonne NAACP also has standing. “There is no question that an association may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy, but [e]ven in the absence of injury to itself, an association may have standing solely as the representative of its members.” Ass’n of Am. Physicians & Surgeons, Inc. v. Tex. Med. Bd., 627 F.3d 547, 550 (5th Cir. 2010).

“Associational standing is a three-part test: (1) the association’s members would independently meet the Article III standing requirements; (2) the interests the association seeks to protect are germane to the purpose of the organization; and (3) neither the claim asserted nor the relief requested requires participation of individual members.” Tex. Democratic Party v. Benkiser, 459 F.3d 582, 587 (5th Cir. 2006). Terrebonne NAACP satisfies each of these requirements. First, Terrebonne NAACP is a membership organization that includes Black registered voters in Terrebonne, such as the individual Plaintiffs. Doc. 284 ¶ 2. As set forth above, each individual Plaintiff meets the requirement of Article III standing. See also Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 342 (1977) (noting that an association must show that “its members, or any one of them, are suffering [cognizable] injury” (emphasis added)). Second, the mission of Terrebonne NAACP is to eliminate racial discrimination in Terrebonne, and for more than 15 years, it has engaged in advocacy for a majority-Black subdistrict for the 32nd JDC. Doc. 284 ¶ 2 & n.2. The interests that Terrebonne NAACP “seeks to protect” through this case plainly “are germane to the purpose of the organization.” Tex. Democratic Party, 459 F.3d at 587. Third, “neither the claim asserted nor the relief requested requires participation of individual members.” Id.; see also Ass’n of Am. Physicians & Surgeons, Inc., 627 F.3d at 550-51 (this element of associational standing is a “prudential,” and not a constitutional, requirement and is aimed to ensure “administrative convenience and efficiency”). Terrebonne NAACP’s discriminatory effect claim requires an analysis of the three Gingles preconditions and the Senate Factors. See Doc. 284 ¶¶ 282, 308. Its discriminatory intent claim is evaluated by reference to the Arlington Heights factors. Id. ¶ 350; see also infra. Neither claim requires an “intensive analysis of individual [voters].” Ass’n of Am. Physicians & Surgeons, Inc., 627 F.3d at 552. Rather, these claims turn on “proof that would readily apply to all of the members” of Terrebonne NAACP. Id. Finally, Terrebonne NAACP seeks injunctive and declaratory relief, not damages. See Doc. 1 at 22-23; Doc. 236 at 4-5; see also Ass’n of Am. Physicians & Surgeons, Inc., 627 F.3d at 551 (“In general, an association’s action for damages running solely to its members would be barred for want of the association’s standing to sue. But in this case, [the plaintiff] seeks declaratory and injunctive relief.”).

Terrebonne NAACP also has demonstrated injury to itself to have standing on its own. Terrebonne NAACP has diverted financial and other resources to counteract the maintenance and dilutive effect of at-large voting for the 32nd JDC, which could have been used for other organizational purposes. Doc. 284 ¶ 2. This constitutes a sufficient injury for Terrebonne NAACP to sue “in its own right.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).


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able to elect their preferred candidates in some elections, such as Judge Pickett, who is Black, to

the 32nd JDC in 2014 and certain white candidates in exogenous elections. Doc. 285 at 3-7. This

argument erroneously conflates the threshold issue of standing with the merits of this case. See

e.g., Pederson v. La. State Univ., 213 F.3d 858, 870 (5th Cir. 2000) (“[I]t is inappropriate for the

court to focus on the merits of the case when considering the issue of standing.”).2 In any event,

neither Judge Pickett’s election nor those of white candidates in exogenous elections show the

absence of vote dilution under at-large voting for the 32nd JDC.3

5. Defendants also claim that they are “impotent” and play no role in 32nd JDC elections or

the remedial process, and Plaintiffs therefore lack standing. Doc. 285 at 10-22. Defendants

previously advanced the same theory in asserting that the exception to sovereign immunity set

forth in Ex parte Young, 209 U.S. 123 (1908), does not apply, and thus, this Court lacks subject

matter jurisdiction. See Doc. 82-1 at 5-8; Doc. 94-1 at 6-8; see also Doc. 85-1 at 5-6. Consistent

with this Court’s prior ruling, see Terrebonne Parish NAACP v. Jindal, 154 F. Supp. 3d 354, 359-

61, 362-63 (M.D. La. 2015), Defendants’ argument as to standing should also be rejected. See

Doc. 284 ¶ 279 & n.121; see also Air Evac EMS, Inc., 851 F.3d at 513-14 (“there is significant

overlap between standing and Ex parte Young’s applicability”).4 Indeed, Defendants ignore

multiple provisions of Louisiana law that set forth their powers and duties with respect to elections,

2 See also Air Evac EMS, Inc. v. Tex. Dep’t of Ins., Div. of Workers’ Comp., 851 F.3d 507, 520 (5th Cir. 2017) (the issue of standing is a “threshold” question and “do[es] not consider the action’s merits”); Texans United for a Safe Economy Educ. Fund v. Crown Cent. Petroleum Corp., 207 F.3d 789, 793 (5th Cir. 2000) (rejecting an argument on standing “because it conflates the issue of standing with the issue of actual liability”). 3 Multiple Plaintiffs have declined to indicate that Judge Pickett was their candidate of choice or necessarily that of the Black community. Doc. 284 ¶ 172 n.79. Moreover, even Mr. Turner, who acknowledges that he would have voted for Judge Pickett had he faced opposition and appeared on the ballot in 2014, explained his desire for systemic change. Id. ¶ 179 n.85. Finally, the elections of white officials, such as current Parish President, Gordon Dove, and District Attorney, Joe Waitz, also do not establish the absence of vote dilution because these were not biracial contests. See Doc. 285 at 6-7; Doc. 284 ¶ 303. 4 Defendants re-urge their argument that sovereign immunity under the Eleventh Amendment deprives the Court of subject matter jurisdiction, but provide no basis for this Court to depart from its prior ruling. Doc. 285 at 23. Accordingly, that argument should also be rejected. Doc. 284 ¶ 279 n.121.


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see Doc. 284 ¶¶ 3-4 & nn.4-8, ¶¶ 10-11,5 and their argument is at odds with numerous voting rights

cases arising in Louisiana (and reaching the U.S. Supreme Court) in which the Governor and AG

have been defendants, such as the landmark cases of Chisom v. Roemer, 501 U.S. 380 (1991), and

Clark v. Roemer, 501 U.S. 1246 (1991), see also Doc. 284 ¶ 6 & nn.9-12 (collecting cases).6

Defendants’ suggestion that they do not “have ‘any duty or ability to do anything’ relating to” the

electoral system for the 32nd JDC is meritless. K.P. v. LeBlanc, 627 F.3d 115, 123 (5th Cir. 2010)

(quoting Okpalobi v. Foster, 244 F.3d 405, 427 (5th Cir. 2001) (en banc)).7

6. Finally, contrary to Defendants’ suggestion, Doc. 285 at 8-10, that other officials (such as

SOS) have played a role in the maintenance and enforcement of at-large voting for the 32nd JDC

does not mean that causation and redressability are absent with respect to Defendants themselves.

See K.P., 627 F.3d at 123 (holding that a plaintiff had standing to sue a board, even though the

board was “far from the sole participant in the application of the challenged statute”); see also

5 For example, under Louisiana’s Election Code, following the certification of election results by SOS, the Governor is responsible for issuing commissions to the winners of elections for the 32nd JDC, which are necessary for such individuals to take office. Doc. 284 ¶ 10. The Governor calls any special elections for the 32nd JDC. Id. ¶ 11. Thus, the Governor participates in the electoral process for that court, helps effectuate the current at-large electoral method, and can be the subject of an injunction. See, e.g., Chisom v. Edwards, 690 F. Supp. 1524, 1539 (E.D. La. 1988) (enjoining the Governor), vacated on other grounds sub nom., Chisom v. Roemer, 853 F.2d 1186 (5th Cir. 1988); Major v. Treen, 574 F. Supp. 325, 355 (E.D. La. 1983) (three-judge court) (same). The AG, meanwhile, is responsible for obtaining preclearance for changes to Louisiana election law under the VRA. Doc. 284 ¶ 5. In this case, Plaintiffs seek the bail-in of Louisiana under Section 3(c) of the VRA for any voting changes related to the 32nd JDC. Doc. 1 at 22-23; Doc. 284 ¶ 350 n.131. This also makes the AG an appropriate defendant in this case. 6 As in prior cases, this Court may consider ordering Defendants to propose a remedy. See, e.g., Clark v. Roemer, 725 F. Supp. 285, 306 (M.D. La. 1988) (following statewide finding of a Section 2 violation with respect to trial and intermediate appellate courts in Louisiana, “call[ing] upon the Governor and the Legislature to fashion a remedy”); Major, 574 F. Supp. at 355-56 (“invit[ing]” defendants, including the Governor, to “present to this court . . . a duly-enacted legislative plan” after a finding of Section 2 violation with respect to congressional redistricting in Louisiana; “[s]hould the legislature, or the Governor, choose not to act, we shall . . . develop and implement a remedial plan”). 7 As Plaintiffs previously briefed this Court, Okpalobi is distinguishable. See, e.g., Doc. 105 at 8; Doc. 106 at 8-9. There, healthcare providers challenged the constitutionality of a Louisiana statute that “provides to women who undergo an abortion a private tort remedy against the doctors who perform the abortion.” Okpalobi, 244 F.3d at 409-10. The Fifth Circuit noted that the Governor and AG “could never themselves cause any injury under th[is] private civil scheme.” Id. at 426 (emphasis added); see also id. at 428 (the harm stemmed from “the filing and prosecution of a private civil action”). As noted above, however, Louisiana law requires the Governor to play several important roles in the electoral process, including the final step of issuing a commission to the winners of elections for the 32nd JDC, and the AG is responsible for obtaining preclearance for changes to Louisiana’s election laws. See supra.


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Utah v. Evans, 536 U.S. 452, 463-64 (2002) (holding that a plaintiff had standing because it was

“substantially likely” that other officials who were not defendants in the case “would abide by an

authoritative” ruling of the court and “bring about the ultimate relief that [the plaintiff] seeks”).8

7. Defendants also re-urge their contention, made in a motion for judgment on the pleadings,

that they are not “person[s]” within the meaning of 42 U.S.C. § 1983 and that they are entitled to

qualified immunity. Compare Doc. 285 at 136-37 with Doc. 85-1 at 3-4. This Court rejected this

argument and, in doing so, questioned whether counsel for Defendants made it in good faith.

Terrebonne Parish NAACP, 154 F. Supp. 3d at 361-62 & n.1 (“The Court is doubtful that, after a

reasonable inquiry, these two defenses are warranted by existing law or good faith argument for

extension, modification, or reversal of existing law.”); see also Fed. R. Civ. P. 11(b)(2).

8 See also, e.g., Air Evac EMS, Inc., 851 F.3d at 514-15 (noting that “[t]racing an injury is not the same as seeking its proximate cause” and that the plaintiff had standing because the state defendants “wield influence” over the process at issue and thus were “among those who cause [the plaintiff’s] injury”); Allstate Ins. Co. v. Abbott, 495 F.3d 151, 159 n.19 (5th Cir. 2007) (recognizing that “redressability [is] satisfied where actors who [are] not parties to the lawsuit could be expected to amend their conduct in response to a court’s declaration”).

As noted in Plaintiffs’ Proposed Findings, Doc. 284 ¶ 279 n.121, and consistent with this Court’s prior ruling, Terrebonne Parish NAACP, 154 F. Supp. 3d at 363, there is no evidence that SOS will not implement a remedial plan adopted by the Legislature or ordered by this Court. Moreover, as Plaintiffs previously briefed this Court, Doc. 169-1 at 8-9 & n.16, numerous voting rights cases in Louisiana have been adjudicated on the merits without SOS as a defendant. See Citizens for a Better Gretna v. City of Gretna, La., 636 F. Supp. 1113, 1114, 1135 (E.D. La. 1986) (finding Section 2 violation without SOS as a defendant), aff’d, 834 F.2d 496 (5th Cir. 1987); see also Theriot v. Parish of Jefferson, 966 F. Supp. 1435, 1437-38, 1449-50 (E.D. La. 1997) (rejecting racial gerrymander challenge to a remedial majority-Black district without SOS as a defendant), aff’d, 185 F.3d 477 (5th Cir. 1999).

Also, Defendants’ contention that Plaintiffs somehow harmed themselves by asking others to run against Judge Pickett in 2014, thereby impeding the goal of achieving diversity on the 32nd JDC, Doc. 285 at 8, is meritless. The right that is protected under Section 2 is not a right to diversity or proportional representation, but rather the right to have an equal opportunity to elect a candidate of choice. Doc. 284 ¶¶ 225, 341, 343. Multiple witnesses at trial, including Rev. Fusilier, disclaimed the notion that Judge Pickett was their candidate of choice or that of the Black community. Id. ¶¶ 172-173 & nn.79-83. That Rev. Fusilier might have asked others, namely a potential candidate of choice, to consider running against Judge Pickett in no way harms his constitutional right to vote.

Further, Defendants’ reliance on Mr. Ellender’s testimony is improper. Consistent with their failure to disclose Mr. Ellender in their initial disclosures, Defendants identified Mr. Ellender as an impeachment witness only. Doc. 236 at 74; 4/26/17 (a.m.) Tr. at 63:1-64:3. Accordingly, at trial, this Court instructed Defendants not to “add[] anything to [their] case in chief” based upon Mr. Ellender’s testimony. 4/26/17 (a.m.) Tr. at 63:1-64:3. During Mr. Ellender’s testimony, and in response to Plaintiffs’ objection, Defendants represented to the Court that Mr. Boykin had denied on cross-examination that he had asked Mr. Ellender to run against Judge Pickett in 2014. Id. at 65:7-66:22. However, this representation was inaccurate. See 3/13/17 Tr. at 138:6-11 (Mr. Boykin testifying that he could not recall a conversation with Mr. Ellender); see also 4/26/17 (p.m.) Tr. at 4:5-5:7. Defendants’ use of Mr. Ellender’s testimony for impeachment is, therefore, improper.


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GINGLES ONE

Numerosity of the Black Population in Terrebonne

8. Defendants make several spurious arguments on numerosity. First, contrary to Defendants’

contention, Doc. 285 at 24-26, 46-48, Plaintiffs’ expert, Mr. Cooper, used appropriate data, namely

the PL 94-171 data file, to prepare the Illustrative Plan and the plan that uses whole precincts.

Doc. 284 ¶¶ 25, 76 n.42. Mr. Cooper also used ACS data to calculate the non-Hispanic Black

citizen VAP in District 1 in both plans. Id. ¶¶ 32, 76 n.42. Numerous courts have recognized that

it is proper to estimate citizen VAP. See id. ¶ 32 n.18 (collecting cases).9 Defendants cite no case

to the contrary. Doc. 285 at 24-26, 46-48.

9. Second, Defendants assert that Georgia v. Ashcroft, 539 U.S. 461 (2003), is distinguishable

because Georgia’s voter registration system “comingle[s]” Black and other minority voters and

identifies them as “Black.” Doc. 285 at 27-28. This contention is nonsensical because voter

registration statistics (maintained by state election officials) are not the same as U.S. Census data

(as reflected in the PL 94-171 data file and used by demographers to report Any-Part Black

populations since 2000); see also Doc. 284 ¶ 15.10 Further, in Ashcroft, the Court did not discuss

the racial categories on Georgia’s voter registration form in holding that, in a “case [that] involves

an examination of only one minority group’s effective exercise of the electoral franchise . . . , it is

proper to look at all individuals who identify themselves as black.” 539 U.S. at 473 n.1.11

9 The Fifth Circuit has held that, in cases involving Latino voters, the relevant measure of population should be citizen VAP, Campos v. City of Houston, 113 F.3d 544, 548 (5th Cir. 1997), and “[t]he sole source of citizenship data published by the Census . . . now comes from the [ACS].” Patino v. City of Pasadena, No. 14-3241, ___ F. Supp. 3d ____, 2017 WL 68467, at *14 (S.D. Tex. Jan. 6, 2017). 10 Indeed, Dr. Weber calculated turnout rates both as (1) as percentages of registered voters, using data from SOS, and (2) as percentages of estimated VAP, using data from the Census. D6 ¶¶ 18-19 & n.2, tbls. 4-5. 11 Mr. Cooper has used the Any-Part Census category in his redistricting work in Louisiana, Doc. 284 ¶ 58, and courts in numerous Section 2 cases outside of Georgia have also done so. See, e.g., Mo. State Conference of NAACP v. Ferguson-Florissant Sch. Dist., 201 F. Supp. 3d 1006, 1020 n.4 (E.D. Mo. 2016); Large v. Fremont County, 709 F. Supp. 2d 1176, 1191-92 (D. Wyo. 2010); Bone Shirt v. Hazeltine, 336 F. Supp. 2d 976, 982 (D.S.D. 2004).


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10. Third, Defendants assert that the Black population in Terrebonne is not sufficiently

numerous because the non-Hispanic DOJ Black VAP accounts for 17.4% of the VAP in

Terrebonne—and is thus 2.6 percentage points lower than 20%. Doc. 285 at 29-30. Defendants

cite no authority for their theory that the Black VAP must constitute exactly 20% of the VAP to

be sufficiently large under Gingles one. See id. Significantly, this argument is contradicted by

Defendants’ own experts, Mr. Hefner and Dr. Weber, both of whom agree that the Black VAP in

Terrebonne is sufficiently numerous. Doc. 284 ¶¶ 57, 81.

Compactness of the Black Population in Terrebonne

11. Defendants argue that District 1 in the Illustrative Plan is not geographically compact

because its Reock and Polsby-Popper scores are “very low,” its shape is “unusual,” and it is

inappropriate to compare the compactness scores or the shape of District 1 to those of other existing

districts in Louisiana. Doc. 285 at 32-34, 37. These arguments are meritless for the numerous

reasons set forth in Plaintiffs’ Proposed Findings. Doc. 284 ¶¶ 33-37, 60-65, 82-89, 286-287.

12. Defendants also assert that the Illustrative Plan does not respect communities of interest

because it joins parts of Houma, Gray, and Schriever into District 1. Doc. 285 at 38, 41-44.

However, as discussed in Plaintiffs’ Proposed Findings, multiple existing districts in or around

Terrebonne, including Parish Council and School Board Districts 2, State House District 51, and

State Senate District 21, already join parts of Houma, Gray, and/or Schriever. Doc. 284 ¶¶ 40-46,

66-69, 89 n.49. Defendants’ contention that Gray and Schriever are not split between different

Parish Council and School Board districts, Doc. 285 at 41, is flatly contradicted by Mr. Hefner,

4/27/17 Tr. at 138:9-15; Doc. 284 ¶ 69.12

12 Defendants stress that the distance between Schriever and Houma is about 13 to 14 miles. Doc. 285 at 44. However, Defendants ignore the wealth of evidence showing that there is a community of interest among Black residents of Houma, Gray, and Schriever, as shown, for example, by the inclusion of these areas in Parish Council and School Board SMDs. Doc. 284 ¶¶ 41-42, 45 & n.24; see also 3/13/17 Tr. at 37:19-38:9, 38:19-39:4 (Mr. Boykin explaining


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13. Defendants criticize Mr. Cooper’s examination of socioeconomic data in preparing the

Illustrative Plan. Doc. 285 at 42-44. However, contrary to Defendants’ assertion, Mr. Cooper

analyzed not only parish-wide socioeconomic data, but also data that was specific to Houma, Gray,

and Schriever. Doc. 284 ¶ 46.13 Moreover, Mr. Cooper considered other information, including

the existing State House, State Senate, Parish Council, and School Board district plans—all of

which reflect local input—to assess communities of interest. Id. ¶ 27, 41-44.14

14. Defendants also criticize the Illustrative Plan for splitting precincts, emphasizing that the

enabling legislation for some judicial subdistricts used whole precincts. Doc. 285 at 38-41, 45-48.

This argument is meritless as set forth in Plaintiffs’ Proposed Findings. Doc. 284 ¶¶ 47-53 & nn.25-

28, 70-76, 89 n.49, 292. In particular, Defendants (1) cite no provision of Louisiana law that

prohibits split precincts for judicial subdistricts; (2) fail to acknowledge that some judicial

subdistricts split precincts when created; (3) ignore that this Court in Hall v. Louisiana, 108 F.

that he has friends and family in Gray and Schriever, they visit each other, and consider themselves to be part of the Terrebonne community); 3/14/17 Tr. at 10:24-11:7 (Rev. Fusilier explaining the same); 3/17/17 Tr. at 69:18-70:1 (Mr. Shelby explaining the same). Moreover, this distance is not as significant as Defendants make it out to be: the four public high schools that serve Terrebonne are only about 3 to 5 miles apart from one another. 3/13/17 Tr. at 35:24-36:12. This is not a case where minority voters who are “hundreds of miles apart” and have “disparate needs and interests” are joined to form one district. League of United Latin Am. Citizens (LULAC) v. Perry, 548 U.S. 399, 435, 441 (2006). 13 Defendants’ reliance on Hays v. Louisiana, 839 F. Supp. 1188, 1203 (W.D. La. 1993), vacated and remanded by 512 U.S. 1230 (1994), Doc. 285 at 43, is misplaced. There, the court considered whether a second majority-Black congressional district in Louisiana was an unconstitutional racial gerrymander. Hays, 839 F. Supp. at 1190-91. In defending this district, the state of Louisiana identified socioeconomic commonality as a basis for it. Id. at 1201, 1203. The court found that to be “post hoc rationalization” because “the socioeconomic profiles of the Plan’s districts were not actually used by the Legislature” in the plan-drawing process. Id. at 1203. By contrast, in this case, Mr. Cooper reviewed the socioeconomic data while developing the Illustrative Plan. Doc. 284 ¶¶ 27, 46. Moreover, the court in Hays did not hold that it would have been improper to consider socioeconomic data. See 839 F. Supp. at 1203. And, in Theriot, the Fifth Circuit considered data that showed “common social and economic needs” in upholding a remedial majority-Black district for the Jefferson Parish Council. 185 F.3d at 486-87; see also Doc. 284 ¶ 89 n.49 (Dr. Weber agreeing that socioeconomic characteristics are included in the concept of communities of interest). 14 Defendants also complain that Mr. Cooper considered the shared history of Black residents in Houma, Gray, and Schriever. Doc. 285 at 44. But Alabama’s statutory definition of communities of interest—which Mr. Hefner relies upon—identifies shared historical interests as an indicator of communities of interest. Doc. 284 ¶ 66 n.35. Courts in Louisiana have similarly done so. See, e.g., Theriot, 966 F. Supp. at 1445 (noting the “historical background” of Black residents having been “united in their efforts to improve schools, fire protection, sewerage, drainage and to obtain paved streets and sidewalks for their neighborhoods” in finding a community of interest).


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Supp. 3d 419, 427-29 (M.D. La. 2015), recently accepted an illustrative plan that split a precinct

at Gingles one; and (4) concede that precinct splits (and the consequent use of lockouts) are

common for judicial elections in Louisiana, with, for example, more than 90 lockouts used for the

16th JDC. Doc. 285 at 38-41, 45-48; see also Doc. 284 ¶¶ 48-49 & nn.25-27, 70-74 & nn.39-41.15

Notably, while Defendants profess concern about the administration and cost of lockouts and

purported voter frustration resulting from lockouts, Doc. 285 at 45-46, Mr. Hefner failed to

substantiate those concerns. Doc. 284 ¶ 75. Moreover, Ms. Rodrigue, who worked in the

Terrebonne Voter Registrar’s Office for 25 ½ years, was also unable to corroborate them and, in

fact, testified that “[given] the technology we have today, it’s not difficult” to administer elections

using lockouts in split precincts. Doc. 284 ¶¶ 52, 75.16

15. Defendants attack the plan that uses whole precincts that were in place for the November

2014 election. Doc. 285 at 46-48.17 Defendants insist that in that potential remedial plan, District

1 has a non-Hispanic DOJ Black VAP of 49.7%. Id. This contention ignores Mr. Cooper’s

undisputed finding that District 1 has an Any-Part Black VAP of 50.35% and a non-Hispanic Black

citizen VAP of 53.90%. Doc. 284 ¶ 76 n.42. Both categories are appropriate for assessing

15 Indeed, while some judicial subdistricts were created out of whole precincts, the Legislature contemplated that those precincts would be split and nonetheless mandated that election subdistricts remain the same, requiring the use of lockouts. Doc. 284 ¶¶ 49 & n.27, 72; see also, e.g., Act 145 of 1994, § 2(A)-(B), 1994 La. Sess. Law Serv. 3rd Ex. Sess. Act 145 (H.B. 105) (West) (establishing subdistricts based on precincts existing as of April 1, 1991, and providing that if the precincts are subsequently subdivided, “the reference in this Act to a precinct shall be construed to include all polling or geographic subdivisions thereof irrespective of the creation of such subdivision”). Defendants’ contention that Plaintiffs are “wrong on … both …[the] law or legislative intent,” Doc. 285 at 39-41, is meritless. 16 Relying upon Mr. Hefner’s trial testimony, Defendants contend that precinct splits will implicate the confidentiality of ballots. Doc. 285 at 45-46. However, Mr. Hefner did not address this topic in any of the three reports that he disclosed during two rounds of expert discovery. See D1 at 8-10; D2 at 15-19; see generally D3. Accordingly, this testimony should be disregarded. 4/27/17 Tr. at 38:5-20, 90:12-19 (this Court, upon Plaintiffs’ first objection, asking counsel for Defendants “not [to] question [Mr. Hefner] on [the subject]” and to “move on” and, upon Plaintiffs’ second objection, noting that if the testimony is “outside the scope of his report,” it would “strike it”). 17 Defendants assert that “Cooper testified that he did not draw an Alternative Plan.” Doc. 285 at 47. However, Mr. Cooper did develop a plan using whole precincts. Doc. 284 ¶ 76 n.42. While he did not produce a map because District 1 in that plan essentially combines Parish Council and School Board Districts 1 and 2, 3/14/17 Tr. at 148:22-149:6, a map of Parish Council and School Board Districts 1 and 2 is in Mr. Cooper’s initial report. P165-a at Ex. D.


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numerosity. See supra; see also Doc. 284 ¶¶ 32 n.18, 58, 76 n.42, 284.

16. Defendants claim that Terrebonne’s population is diversifying and that Black residents are

too spread out to create a majority-Black SMD. Doc. 285 at 30-31, 89-90.18 However,

notwithstanding the alleged and unsubstantiated dispersion, District 1 falls within the norm in

terms of its geographic compactness. Doc. 284 ¶ 89 & n.48.19

17. Defendants insist that Gingles one involves an analysis of whether race predominated in

the development of an illustrative plan. Doc. 285 at 28-29, 37. But Defendants fail to cite a Section

2 case that applies this equal protection inquiry to analyze Gingles one. See id.20 Moreover, the

Fifth Circuit has rejected this contention. Doc. 284 ¶¶ 77, 90, 295 & n.123. Defendants assert that

the (1) shape of District 1, (2) splitting of Gray and Schriever and of precincts, and (3) use of

census blocks all demonstrate that race predominated in the development of the Illustrative Plan.

Doc. 285 at 33-39. As discussed in Plaintiffs’ Proposed Findings, each of these arguments is

meritless. Doc. 284 ¶¶ 28, 30, 79-80 & n.44, 90, 296.21 In particular, contrary to Defendants’

assertion, Mr. Cooper did not “take[] in only those majority Black blocks or exclude[] where

18 As support, Defendants cite Ms. Rodrigue’s testimony regarding Terrebonne Parish Council redistricting in 2011. Doc. 285 at 89. However, Ms. Rodrigue is not a demographer. See 3/20/17 Tr. at 103:22-23. Moreover, Mr. Cooper testified that it is not difficult to draw two majority-Black SMDs for the Parish Council, thereby further underscoring that it is possible to create one of five majority-Black districts for the 32nd JDC. Doc. 284 ¶ 89. 19 For the first time in this case, Mr. Hefner addressed at trial the geographical distribution of growth in the Black VAP, having failed to discuss that in any of his reports. Compare Doc. 285 at 31 with 4/27/17 Tr. at 113:12-115:13. 20 Instead, Defendants cite only cases that adjudicate racial gerrymandering claims under the Equal Protection Clause. See Doc. 285 at 28-29, 33-39 (citing Cooper v. Harris, 137 S. Ct. 1455 (2017); Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788 (2017); Abrams v. Johnson, 521 U.S. 74 (1997); Miller v. Johnson, 515 U.S. 900 (1995); Shaw v. Reno, 509 U.S. 630 (1993); and Hays). 21 Defendants’ contention that the shape of District 1 shows a racial gerrymander is meritless because it is as regular in shape as other existing districts in Louisiana and shares the crescent shape that State House District 51 has within Terrebonne Parish. Doc. 284 ¶¶ 33-37, 80 n.44. Further, it is a far cry from those that courts found suspect in Cooper, see 137 S. Ct. at 1482-84 (North Carolina Congressional Districts 1 and 12); Miller, 515 U.S. at 928 (Georgia Congressional District 11 as shown in Appendix B); Shaw, 509 U.S. at 635, 658-59 (North Carolina Congressional Districts 1 and 12); and Hays, 839 F. Supp. at 1211 (Louisiana Congressional District 4). Defendants also assert that there is “direct evidence that race played the only role” in the development of the Illustrative Plan because Mr. Cooper admits to seeking to create a majority-Black SMD. Doc. 285 at 36. But Mr. Cooper made it clear that while race was a consideration—as it always is in a Section 2 case—it did not “subordinat[e] other districting criteria.” Cooper, 137 S. Ct. at 1469; see Doc. 284 ¶¶ 28, 30, 79-80 & n.44, 90, 296.


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possible . . . majority White blocks” to create District 1. Doc. 285 at 36; see Doc. 284 ¶ 30, 80,

296.22

18. Finally, Defendants criticize the Illustrative Plan on the ground that, aside from District 1,

it will “bleach[]” the other districts and “disenfranchise” Black voters in those other areas. Doc.

285 at 22, 44-45, 86-87, 124. This argument is also without merit. As the Fifth Circuit has noted,

“[w]henever a majority-black district is created to remedy a § 2 violation, the number of black

voters in the other districts must necessarily be reduced. Indeed, without this phenomenon, no

majority-black districts would ever be created.” Clark v. Calhoun County, 21 F.3d 92, 95 (5th Cir.

1994). Accordingly, the “suggestion that the formation of plaintiffs’ proposed district would dilute

the voting strength of black citizens in the remaining districts does not support [the] conclusion

that the black population . . . is not sufficiently geographically compact” under Gingles one. Id.;

see also Campos v. City of Baytown, 840 F.2d 1240, 1244 (5th Cir. 1988) (“The fact that there are

members of the minority group outside the minority district is immaterial” for Gingles one.).23

GINGLES TWO AND THREE

19. Defendants halfheartedly raise a handful of arguments to suggest that Plaintiffs cannot

establish Gingles two and three; none of these contentions are persuasive. First, relying upon one

portion of Dr. Weber’s initial report, Defendants assert that the 1994 32nd JDC election did not

feature RPV. Doc. 285 at 57, 58. However, as noted in Plaintiffs’ Proposed Findings, Dr. Weber

clarified on direct examination that he found “the 1994 [election] … polarized,” and accordingly,

“five of the seven elections [that he analyzed] are polarized.” Doc. 284 ¶ 108 n.55; see also 4/28/17

22 Moreover, even if race predominated in the development of the Illustrative Plan, which it did not, Defendants do not contend that the plan would fail strict scrutiny. See Doc. 285 at 28-29, 33-38. Accordingly, Defendants’ racial gerrymander argument must be rejected. Doc. 284 ¶¶ 78 n.43, 90 n.50, 297. 23 Defendants cite League of United Latin American Citizens, Council No. 4434 v. Clements, 999 F.2d 831 (5th Cir. 1993), for the proposition that a subdistrict might diminish minority voter influence in other parts of the parish. Doc. 285 at 45. However, that case did not address the Gingles one inquiry, see Clements, 999 F.2d. at 872-73, and Campos and Clark (before and after Clements, respectively) foreclose Defendants’ argument. See supra.


12

Tr. at 64:14-65:3. Defendants concede such in a later portion of their brief. Doc. 285 at 64.24

20. Second, Defendants insist that one endogenous election25 is not sufficient to satisfy Gingles

two and three. Id. at 50-51, 63-64, 101. However, as noted in Plaintiffs’ Proposed Findings, see

Doc. 284 ¶¶ 302, 307, this argument is contrary to Fifth Circuit precedent. See, e.g., Westwego

Citizens for Better Gov’t v. City of Westwego, 946 F.2d 1109, 1113-1114, 1119 (5th Cir. 1991)

(evidence from one endogenous election and five exogenous elections was sufficient to show, and

in fact “unmistakably demonstrate[d],” RPV).

21. Third, Defendants assert that the 1994 32nd JDC and 1993 First Circuit Court of Appeal

elections are stale. Doc. 285 at 52-56, 101-102. But, as discussed in Plaintiffs’ Proposed Findings,

even if these two elections were eliminated, the pattern of RPV in the remaining five elections

would remain the same. Doc. 284 ¶¶ 111, 307. Further, as noted in Plaintiffs’ Proposed Findings,

id. ¶¶ 302, 307, the Fifth Circuit has explicitly rejected the notion that “plaintiffs may never make

24 As discussed in Plaintiffs’ Proposed Findings, Dr. Weber’s finding of RPV in five of seven elections is sufficient to establish Gingles two and three. See Doc. 284 ¶¶ 108, 305. Defendants assert that Dr. Weber’s findings do not show that RPV “occur[s] to a full extent.” Doc. 285 at 64. However, as Plaintiffs indicate, Doc. 284 ¶ 305, “that [RPV] is not present in one or a few individual elections does not necessarily negate the conclusion that the [jurisdiction] experiences legally significant bloc voting.” Thornburg v. Gingles, 478 U.S. 30, 57 (1986).

Moreover, as noted in Plaintiffs’ Proposed Findings, Dr. Weber’s finding of no RPV in two of the seven elections rests on a classification rule that cannot be reconciled with Gingles and finds no support in social science. Doc. 284 ¶¶ 113-125. Defendants concede that Dr. Weber’s classification rule focuses on whether “the vote amongst white candidates is split,” but offer little support for that approach other than saying that it is based on “common sense.” Doc. 285 at 50. But “Gingles would have come out differently if the Supreme Court had used Dr. Weber’s [classification rule] because several of the elections in which the Court found polarization to be present did not meet Dr. Weber’s standard.” Large, 709 F. Supp. 2d at 1214-15. As this Court did in Hall, and as other courts have, this Court should reject Dr. Weber’s classification rule. See 108 F. Supp. 3d at 435; see also Doc. 284 ¶¶ 113-125.

Defendants assert that, according to Dr. Weber, “even if racially cohesive voting occurred in an election, this did not result in [RPV].” Doc. 285 at 64. This mischaracterizes Dr. Weber’s testimony. According to Dr. Weber, under his classification rule, even if he finds Black voters to be cohesive, he will not find an election to be polarized unless non-Black voters are also cohesive. See 4/28/17 Tr. at 62:21-63:16; see also Doc. 284 ¶¶ 113-114. 25 Defendants advance a definition of endogenous and exogenous elections that is different than that of the experts in this case and endorsed by the Fifth Circuit. Consistent with Fifth Circuit precedent, Drs. Engstrom and Weber agree that an endogenous election is for the office that is at issue (i.e., the 32nd JDC), while exogenous elections encompass other contests. Doc. 284 ¶¶ 92, 109, 301. By contrast, the court in Texas v. United States, 887 F. Supp. 2d 133 (D.D.C. 2012), defined endogenous elections as those held within the electoral district at issue (i.e., Terrebonne because of the 32nd JDC’s parish-wide territorial jurisdiction) and exogenous elections as those held across a larger area, such as a statewide or nationwide election. Id. at 141-42. Under these definitions, four elections in this case—the 1994 32nd JDC, 2011 Tax Assessor, 2014 Houma City Court, and 2014 City Marshal—would be considered endogenous elections because they were parish-wide elections that involved all, and only, voters in Terrebonne. See id.


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out a vote dilution claim when there is no evidence from ‘indigenous’ elections.” Westwego

Citizens for Better Gov’t v. City of Westwego, 872 F.2d 1201, 1209 (5th Cir. 1989).26

22. Fourth, Defendants assert that exogenous elections need not be considered. Doc. 285 at

58. As indicated in Plaintiffs’ Proposed Findings, Doc. 284 ¶ 109, 301, this conflicts with binding

precedent. See Westwego Citizens for Better Gov’t, 872 F.2d at 1207 (reversing district court for

“declin[ing] to consider evidence of [RPV] derived from elections other than the [endogenous]

elections”).27

23. Fifth, Defendants argue that Plaintiffs cannot establish RPV because of the election of

Judge Pickett to the 32nd JDC in 2014. Doc. 285 at 58, 64. However, because Judge Pickett ran

unopposed, his name was not on the ballot, and no votes were cast. Doc. 284 ¶ 171. Accordingly,

neither Drs. Engstrom nor Weber conducted a RPV analysis of that election. Id. ¶ 172. Thus, it

does not show the absence of RPV. See also infra.

24. Sixth, Defendants fault Plaintiffs for analyzing only biracial elections and point to the

26 Defendants attempt to suggest that Dr. Engstrom’s decision to analyze the 1994 32nd JDC and 1993 First Circuit Court of Appeal elections in this case is inconsistent with his approach in Hall, where he did not analyze a 1993 Baton Rouge City Court election. Doc. 285 at 52-54. There is no inconsistency. Dr. Engstrom has always taken the position that more recent elections are more probative of RPV. 3/13/17 Tr. at 193:6-18 (“I always say that.”). As Dr. Engstrom explained at trial, he had seven recent biracial judicial elections to analyze in Hall; accordingly, he did not believe that it was necessary to examine the 1993 Baton Rouge City Court election. Id. at 187:16-188:9. By contrast, in this case, Dr. Engstrom did not have seven recent biracial judicial elections to analyze; accordingly, he found it appropriate to analyze (1) judicial elections that “go back further in time” and (2) recent, non-judicial elections. Id. at 153:8-21, 190:25-191:9, 195:20-25. Dr. Engstrom’s decision to expand the pool of elections in this way comports with this Court’s ruling in Hall, see 108 F. Supp. 3d at 430-33 (examining elections from 2000 to 2012), and other cases, such as Magnolia Bar Association, Inc. v. Lee, 793 F. Supp. 1386, 1404-05 (S.D. Miss. 1992) (examining “local, state, and federal elections . . . over a twenty-year period”), which Defendants cite in their own brief, Doc. 285 at 49. If there is any inconsistency, it lies with Dr. Weber, who opines in this case that the 2008 and 2012 presidential elections analyzed by Dr. Engstrom “are not very predictive about local elections,” but who analyzed these presidential elections in Hall. Doc. 284 ¶ 110. Ultimately, even excluding the 1994 32nd JDC and 1993 First Circuit Court of Appeal elections, the pattern of RPV in the five other examined elections would remain the same. See supra. 27 It is also inconsistent with this Court’s decisions in Hall, 108 F. Supp. 3d at 430-33 (considering exogenous elections), and Clark v. Roemer, 777 F. Supp. 445 (M.D. La. 1990), see, e.g., id. at 460-61 (finding a Section 2 violation with respect to the 24th JDC and holding that an election for the Jefferson Parish Juvenile Court and other exogenous elections provided “strong” evidence of RPV in part because it was “a parish wide election with exactly the same district lines as the district court and … is a judicial election”), readopted on remand, 777 F. Supp. 471, 478-79 (M.D. La. 1991); see also Doc. 284 ¶ 109 (Dr. Weber recalling Clark analyzed “a lot of exogenous elections”).


14

election of white Parish President Dove and DA Waitz as evidence that Black voters can elect their

preferred candidates. Doc. 285 at 6-7, 88-89. But these are not biracial contests, see id., and, as

noted in Plaintiffs’ Proposed Findings, Doc. 284 ¶¶ 92, 303, the Fifth Circuit has recognized that

RPV should be assessed by analyzing elections that “includ[e] both black and white candidates.”

Westwego Citizens for Better Gov’t, 872 F.2d at 1208 n.7.

25. Defendants’ arguments cannot overcome the finding of Dr. Engstrom, who has testified as

an expert witness in more than 100 voting rights cases, that “the magnitude of polarization [in this

case] . . . would certainly be among the most polarized context or environment that I have . . .

studied. It’s among them, if not the most.” Doc. 284 ¶¶ 92 n.51, 101.

TOTALITY OF CIRCUMSTANCES

26. Defendants assert that Plaintiffs have not proven a majority or all of the Senate Factors in

this case. Doc. 285 at 97. However, as set forth in Plaintiffs’ Proposed Findings, Doc. 284 ¶¶ 309,

345 & n.130, a plaintiff need not prove “any particular number of factors . . . or that a majority of

them point one way or the other.” Gingles, 478 U.S. at 45.28 Here, Plaintiffs have established at

least seven Senate Factors, include the two most important: Senate Factors 2 (RPV) and 7 (lack of

Black electoral success). Doc. 284 ¶ 345 & n.130.

Senate Factor 1: History of Voting Discrimination in Louisiana and Terrebonne

27. Defendants’ argument that “Plaintiffs cannot prove Senate Factor 1” cannot be taken

seriously. Doc. 285 at 61. As set forth in Plaintiffs’ Proposed Findings, there is an extensive history

of voting discrimination in Louisiana and Terrebonne, and a centerpiece of that history,

particularly following the enactment of the VRA in 1965, has been the use and maintenance of at-

28 See also McMillan v. Escambia County, 748 F.2d 1037, 1042-47 (5th Cir. 1984) (finding a Section 2 violation based on Senate Factors 1, 2, 3, 5, 7, and 9); Miss. State Chapter, Operation Push v. Allain, 674 F. Supp. 1245, 1262-68 (N.D. Miss. 1987) (finding a Section 2 violation after determining that five Senate Factors weighed in plaintiffs’ favor), aff’d, 932 F.2d 400 (5th Cir. 1991).


15

large voting. Doc. 284 ¶¶ 129-137. DOJ repeatedly blocked Louisiana’s use of at-large voting, and

numerous federal courts have enjoined at-large voting for judicial and non-judicial elections in

Louisiana. Id. ¶¶ 6 & nn.9-12, 131-37 & n.63, 311 & n.126.

28. Defendants do not—and indeed, cannot—dispute Louisiana’s repeated attempts to dilute

Black voting strength through at-large voting and other devices. Doc. 285 at 60-63.29 Instead,

Defendants contend that the individual Plaintiffs face no direct impediment to register to vote and

to vote. Id. But this case is about vote dilution, not vote denial. See Veasey v. Abbott, 830 F.3d

216, 244 & n.34 (5th Cir. 2016) (en banc) (distinguishing between the two).30 Defendants also

assert that “[t]here is no evidence of discrimination in Terrebonne Parish as it relates to minorities’

right to . . . participate in the democratic process.” Doc. 285 at 61. To the contrary, the evidence

in this case amply demonstrates that at-large voting operates to dilute Black voting strength and

has been maintained for this purpose. Doc. 284 ¶¶ 345, 351.

Senate Factor 2: RPV

29. As set forth above, Defendants make little attempt to address the stark pattern of RPV in

Terrebonne. See supra. Defendants contend that partisanship explains voting patterns and Black

electoral defeat, Doc. 285 at 90-91, but as discussed in Plaintiffs’ Proposed Findings, in the seven

elections examined by Drs. Engstrom and Weber, the candidates of choice of Black voters have

29 Defendants offered to ask the Court to take judicial notice of Louisiana’s history of discrimination. 3/14/17 Tr. at 212:11-14. Insofar as Defendants suggest that this history is irrelevant, that is contrary to Gingles. 478 U.S. at 36-37, 44-45; see also LULAC, 548 U.S. 439-40 (considering the “long, well documented history” of voting discrimination in Texas, which “stretch[ed] back to Reconstruction” and included “[d]evices such as the poll tax, an all-white primary system, and restrictive voter registration,” in finding a Section 2 violation); Westwego Citizens for Better Gov’t, 872 F.2d at 1211-12 (“the district court judge [erred by] disregard[ing] historical evidence of discrimination” because “Congress was concerned not only with present discrimination, but with the vestiges of discrimination which may interact with present political structures to perpetuate a historical lack of access to the political system”). 30 Defendants also emphasize that there was no finding of liability with respect to the 32nd JDC in Clark v. Roemer. Doc. 285 at 121-23. As noted in Plaintiffs’ Proposed Findings, however, that reflects the demographics of Terrebonne decades ago, and indisputably, the demographics have changed. Doc. 284 ¶ 137 n.65.


16

been consistently defeated regardless of party affiliation. Doc. 284 ¶¶ 94-105, 139-140 & n.66.31

Senate Factor 3: Enhancing Factors

30. Defendants’ contention that enhancing factors are not “present” in the electoral system for

the 32nd JDC is frivolous. Doc. 285 at 65. The Supreme Court and the Fifth Circuit have long

recognized that majority-vote requirements, division/numbered posts, and large election districts

can impair minority voting strength. Doc. 284 ¶ 315 (collecting cases). Louisiana law requires

(indeed, Defendants stipulated to) the use of a majority-vote requirement and designated divisions

for 32nd JDC elections. Id. ¶¶ 8-9 (citing Stip. Nos. 29-31, 33-34). Further, while Defendants

suggest that the electoral district for the 32nd JDC is not large, there is no question that the current,

at-large district would be larger than any subdistrict for the 32nd JDC. Doc. 285 at 64.32

31. Defendants characterize the detailed explanations of Drs. Engstrom and Lichtman about

the impact of these enhancing factors, see Doc. 284 ¶¶ 141-143, as “speculative.” Doc. 285 at 65.

Yet, as noted above, federal courts have recognized that these features have the potential to dilute

minority voting strength. Doc. 284 ¶ 315 (collecting cases).33 Defendants complain that there is no

evidence that Black voters in Terrebonne would necessarily use or have used single-shot voting, a

strategy that provides minority voters with a better opportunity, but by no means a certainty, to

elect their candidates of choice. Doc. 285 at 65; Doc. 284 ¶ 142. However, as set forth in Gingles,

this Senate Factor calls for the consideration of voting practices, like anti-single-shot voting

31 Defendants contend that in the 2014 City Marshal election, a Republican candidate prevailed. Doc. 285 at 91. Yet, Defendants acknowledge that judicial elections are more probative than non-judicial elections in this case, see id. at 50-51, and it is undisputed that in each of the three judicial elections examined by Drs. Engstrom and Weber, including the 2014 Houma City Court election that featured an all-Republican field, voting was racially polarized, and the Black candidate was defeated by candidates of the same party affiliation. Doc. 284 ¶¶ 94-96, 108, 140. 32 Defendants’ own witnesses remarked how large Terrebonne is. See, e.g., 3/20/17 Tr. at 117:20-119:3 (Judge Larke remarking of Terrebonne “we’re large in land”) 33 For instance, the Fifth Circuit has explained that “[i]n the presence of [RPV], the majority vote requirement permits a white majority that scattered its votes among several white candidates in a[n] election to consolidate its support behind the remaining white candidate in the run-off election, thereby defeating the minority-supported candidate.” Clark v. Calhoun County, 88 F.3d 1393, 1398 (5th Cir. 1996).


17

mechanisms, that “may enhance” the likelihood of discrimination. 478 U.S. at 36 (emphasis

added); see also id. at 45 (noting that this Senate Factor focuses on practices that “tend to enhance

the opportunity for discrimination”) (emphasis added); Hall, 108 F. Supp. 3d at 426 n.5. It is

sufficient for the devices at issue to enhance the likelihood of discrimination, which, as shown by

Dr. Engstrom’s and Dr. Lichtman’s testimony, they unquestionably do. Doc. 284 ¶¶ 141-143.

Senate Factor 5: Discrimination in Areas of Life that Hinder Political Participation

32. Defendants’ suggestion that Plaintiffs have not proven Senate Factor 5, Doc. 285 at 66, is

meritless. Defendants do not—and cannot—dispute Louisiana’s history of de jure and de facto

discrimination against Black people in every aspect of economic and social life. Doc. 284 ¶¶ 144-

146; Doc. 285 at 66-70. Defendants do not—and cannot—dispute that this history has resulted in

stark disparities between Black and white residents of Terrebonne in terms of education,

employment, income, housing, transportation, health, and other measures of socioeconomic well-

being. Doc. 284 ¶¶ 46, 151-152; Doc. 285 at 66-70. Indeed, Defendants do not respond to or even

attempt to explain the wealth of data that shows these differences. Doc. 285 at 66-70. And while

Defendants invoke Dr. Weber’s opinion that there is no difference in disparity in voter registration

or turnout, id. at 61, 69-70, 102-103, Dr. Weber’s own data decisively refutes that assertion, as set

forth in Plaintiffs’ Proposed Findings. Doc. 284 ¶¶ 156-159.

33. Defendants dispute the persistence of discrimination in education by focusing on the

experience of individual Plaintiffs and asserting that Black residents have “numerous opportunities

to attend public school.” Doc. 285 at 66-67. However, Defendants do not—and cannot—dispute

that Terrebonne’s public-school system has yet to achieve unitary status, and that less than half as

many Black residents (7.4%) have a college degree as compared to white residents (15.2%). Doc.

284 ¶¶ 145, 152. Defendants do not—and cannot—dispute Louisiana’s dismal record of


18

integrating higher education institutions, subjecting the state to a court order as recently as 1998,

which implicates the number of Black residents eligible to run for the 32nd JDC. Id. ¶¶ 146, 223.34

34. Defendants also attempt to suggest that there is no longer discrimination in employment

by emphasizing that the individual Plaintiffs have been “able to find jobs throughout their lives”

and identifying a handful of Black residents who work for the parish. Doc. 285 at 68-69. However,

Defendants do not—and cannot—dispute that, as shown by ACS data: the unemployment rate for

Black people in Terrebonne (8.5%) is almost twice as high as that of white people (4.9%); about

half as many Black people (15%) work in management or professional occupations as white people

(27%); and the median earnings of Black people working full-time ($21,028) is approximately

two-thirds that of white people ($32,097). Doc. 284 ¶ 152; P165-a ¶ 24(d); P167-a at 69.35

35. Finally, Defendants quibble with Dr. Lichtman’s testimony on health disparities and

complain that he “did not explain how health issues act as a barrier to turnout.” Doc. 285 at 67-68.

This argument ignores binding precedent holding that “Plaintiffs are not required to prove a causal

connection between [socioeconomic disparities] and a depressed level of political participation.”

Teague v. Attala County, 92 F.3d 283, 294 (5th Cir. 1996); Doc. 284 ¶ 317.

36. As discussed in Plaintiffs’ Proposed Findings, numerous courts have recognized that, due

to discrimination, Black voters in Louisiana suffer from socioeconomic disadvantages that hinder

34 Nor do Defendants dispute Mr. Shelby’s testimony that, in spite of his individual success, as a Black student in Terrebonne, “you are not expected . . . to achieve as highly as [a white] student, and when you do it’s almost like you did something that you weren’t supposed to do,” and that he was told by a white paraprofessional in school to “get [his] cotton-picking hands off of [her].” 3/17/17 Tr. at 70:13-72:23; Doc. 284 ¶ 150 n.70. 35 Nor do Defendants controvert the testimony of Mr. Boykin, who testified to his advocacy to disrupt the presence of employment barriers for Black residents in various business sectors in the 1990s; Mr. Turner, who testified to being a “target practice” during his 33-year tenure at the Houma Fire Department up until his retirement in 2001; and Mr. Shelby, who provided an even more recent perspective, recounting the disparate treatment he experienced in the 2000s while working at a clothing store in Terrebonne that had the practice of “keeping one Black person on staff.” Doc. 284 ¶¶ 3 n.3, 150 n.70; 3/17/17 at 72:24-74:1. While Defendants seek to downplay and discredit the individual Plaintiffs’ testimony by intonating that they “felt discriminated against,” Defendants do not, and cannot, controvert any of the underlying facts. Doc. 285 at 69-70.


19

their ability to participate in the political process. Doc. 284 ¶ 318. Defendants’ attempt to cast

Terrebonne and Louisiana as free of discrimination and suggest that there are no lingering effects

on Black political participation is disingenuous and untenable.

Senate Factor 7: Lack of Black Electoral Success

37. Defendants insist that Plaintiffs “cannot prove Senate Factor 7.” Doc. 285 at 70. However,

Defendants do not—and cannot—dispute that: (1) prior to this litigation, no Black candidate had

ever been elected to the 32nd JDC; (2) to date, no Black candidate has ever been elected to any

other parish-wide, at-large elected position, such as Parish President, District Attorney, Sheriff,

Coroner, Clerk of Court, Tax Assessor, City Marshal, and Houma City Court Judge; and (3) to

date, no Black candidate who has faced opposition has ever been elected to a parish-wide, at-large

position. Doc. 284 ¶¶ 161-63, 189; Doc. 285 at 70-78. This is unsurprising given the stark patterns

of RPV in Terrebonne. See Doc. 284 ¶¶ 92-126. Tellingly, one of Defendants’ witnesses, Mr.

Dove, had to reach as far back as to the era of Reconstruction in the 1800s to recall “two or three”

Black mayors in Terrebonne. Id. ¶ 162. As noted in Plaintiffs’ Proposed Findings, this virtually

complete absence of Black officials in parish-wide, at-large elected offices weighs significantly in

favor of a finding of vote dilution. Id. ¶¶ 320-321.

Uncontested, Post-Litigation Election of Juan Pickett

38. Defendants repeatedly assert that Judge Pickett’s election to the 32nd JDC in November

2014 shows that at-large voting does not dilute Black voting strength. Doc. 285 at 4-6, 64-65, 70-

71, 75, 78. However, Defendants do not—and cannot—dispute the multiple special circumstances

that surrounded this election and that, in accordance with Supreme Court and Fifth Circuit

precedent, undermine its probative value: Judge Pickett ran unopposed for an open seat on the

32nd JDC after this litigation was filed in February 2014, and for the first time in the history of


20

Terrebonne, no white attorney—of which there were approximately 160—competed for an open

seat on that court. Doc. 284 ¶¶ 169-170 & nn.77-78, 322-324.

39. Defendants attempt to downplay the timing of Judge Pickett’s election by contending that

he desired to run for judge as far back as 2002. Doc. 285 at 4. But the fact remains that he was not

elected until November 2014 after Plaintiffs filed this case, and Defendants do not dispute that

local white officials were aware, as early as June 2011, that Terrebonne NAACP intended to file

a lawsuit to challenge at-large voting for the 32nd JDC. Doc. 284 ¶¶ 2 n.2, 168-169, 184 n.88.

Moreover, as noted in Plaintiffs’ Proposed Findings, that Judge Pickett may have sought to become

a judge before the case was filed does not mean that the white community did not sponsor him as

a candidate to forestall a change to the at-large electoral scheme. Id. ¶ 184 n.88.

40. Defendants attempt to diminish the unprecedented lack of opposition to Judge Pickett by

emphasizing that “Judge Pickett did not find it an aberration that out of 168 lawyers in Terrebonne

that not one of them ran against him.” Doc. 285 at 5. Yet, Defendants’ own expert, Dr. Weber,

states that “as a candidate running for the first time for judge [as Judge Pickett did in 2014], it is

more common to be opposed. . . . [Y]ou would have expected that when there’s an open seat, all

of the lawyers in town are going to be running for that open seat because that’s what you saw in

1994, with that open seat, there were six candidates.” Doc. 284 ¶ 170 & n.78.36

36 Defendants also point to the lack of opposition to “Chris Boudreaux who was white [and] ran for Judge in Lafourche Parish.” Doc. 285 at 5. This comparison is inapposite because Defendants concede that Mr. Boudreaux was a white candidate, and this election took place in Lafourche, not Terrebonne. See id.

Relying upon Ms. Romig’s data, Defendants emphasize that 77 non-incumbent candidates won without opposition in various judicial elections in Louisiana in the November 2014 election. Id. at 5, 93. But Ms. Romig did not analyze whether those candidates ran in a majority-white jurisdiction, as Judge Pickett did, or a majority-Black jurisdiction. 3/20/17 Tr. at 60:23-61:5. Thus, Ms. Romig did not identify any other Black candidate who ran unopposed in a majority-white jurisdiction. See id. In fact, Dr. Lichtman reviewed Ms. Romig’s report and found that “as reflected in Exhibits F and G of [her] [r]eport, between 1990 and 2014, Mr. Pickett was the only [Black] candidate to run unopposed for an at-large judicial seat in a majority-white jurisdiction in Louisiana.” P173 at 10 (citing D4-F & D4-G); see also 3/14/17 Tr. at 252:24-256:16; 3/17/17 Tr. at 23:5-10.

Relying upon Ms. Romig’s data, Defendants also suggest that within Terrebonne, in addition to Judge Pickett, Judge Wimbish was a non-incumbent candidate who won without opposition in 1990 to the 32nd JDC. Doc. 285 at 94; D4 ¶ 13; 3/20/17 Tr. at 27:20-28:1. However, Judge Wimbish was already a judge of the 32nd JDC at that time.


21

41. Defendants emphasize Mr. Beychok’s opinion that the lack of opposition reflects Judge

Pickett’s effective campaigning. Doc. 285 at 65, 75. But as set forth in Plaintiffs’ Proposed

Findings, this argument is meritless for multiple reasons, including that the attributes that Mr.

Beychok cites for Judge Pickett’s electoral success are not unique to him and, in other instances,

did not deter other candidates from competing for parish-wide, at-large elected positions. Doc. 284

¶¶ 180-183. Even Mr. Beychok concedes that “it’s just speculation to say, you know, whether

[those factors] deterred or whether [they] didn’t deter.” Id. ¶ 183.

42. Defendants claim that Judge Pickett was the candidate of choice of Black voters. Doc. 285

at 4. The evidence does not support this contention. As noted in Plaintiffs’ Proposed Findings, and

discussed above, because Judge Pickett ran unopposed, his name was not on the ballot, no votes

were recorded, and neither Drs. Engstrom nor Weber were able to conduct an RPV analysis of this

election. Doc. 284 ¶¶ 171-172 & n.79. Moreover, multiple Black voters testified that Judge Pickett

was not their candidate of choice or that of the Black community as a whole. Id. ¶ 172 n.79.37

43. While Defendants cite Mr. Turner’s testimony that Judge Pickett was his candidate of

choice, Doc. 285 at 4, 71, Defendants neglect to indicate that Mr. Turner also explained: “in that

particular election, we didn’t have a choice ‘cause [Judge Pickett was] the only one that ran”; and,

notwithstanding Judge Pickett’s election, Mr. Turner still seeks a majority-Black subdistrict for

the 32nd JDC because “Judge Pickett right now is judge, but if something happens . . . [y]ou would

See In re Wimbish, 733 So. 2d 1183, 1185 (La. 1999) (“Judge Wimbish assumed the office of Judge of the [32nd JDC] . . . on January 2, 1980.”); 3/20/17 Tr. at 82:9-14. There is no dispute that Judge Pickett is the only Black candidate who has run unopposed for the 32nd JDC or for a parish-wide, at-large position in Terrebonne’s history, and that he did so during the pendency of this litigation. 37 This is consistent with multiple indicia of Judge Pickett’s background, including: his failure, as far back as 1997, to support a majority-Black subdistrict for the 32nd JDC; his support for Judge Ellender during Judge Ellender’s Judiciary Commission proceedings stemming from his public appearance, while serving as a 32nd JDC judge, in blackface; Judge Pickett’s lack of engagement with Terrebonne NAACP prior to his 2014 campaign; his change in party affiliation three times over a six-month period during his 2014 campaign; and the unprecedented financial backing by white individuals and white-owned businesses that he received and that no other Black candidate in Terrebonne’s history received. Doc. 284 ¶¶ 173-177.


22

go back to the same system we have in place now . . . We’ll have an at-large system and that would

mean that someone of our choice from the minority race would not have . . . a[n] equal opportunity

to run and win.” 3/14/17 Tr. at 191:4-193:12; Doc. 284 ¶ 179 n.85.

44. Unable to identify any other Black candidate who has been elected at-large to a parish-

wide office, Defendants reference Black officeholders on the Parish Council and School Board,

and the Louisiana Legislature and Supreme Court, to suggest that there are no barriers to Black

electoral opportunity in Terrebonne or Louisiana. Doc. 285 at 73. In so doing, Defendants fail to

acknowledge that these officeholders have been elected from majority-Black SMDs created, in

many instances, as a result of Section 2 litigation. Doc. 284 ¶¶ 6 & n.9, 135-136, 164-166 & n.76,

189 n.94. Moreover, even with federal intervention, minority officials remain substantially

underrepresented in elected public offices in Louisiana, including in the Legislature and judiciary.

Id. ¶¶ 165-166. Indeed, this Court has taken judicial notice that Louisiana “ha[s had] no [minority]

elected officials since Reconstruction that have been elected state-wide.” Id. ¶ 167.

“Non-Racial” Factors

45. Citing Mr. Beychok’s testimony, Defendants contend that Black electoral defeat is due to

“non-racial” factors, such as “money, time, and people,” as opposed to race. Doc. 285 at 73-78.

As discussed in Plaintiffs’ Proposed Findings, however, the consistent and overwhelming defeat

of all—not merely “some” as Defendants indicate—Black candidates in contested at-large

elections in Terrebonne, despite consistent and overwhelming support by Black voters, cannot be

explained by “across-the-board” factors, such as “money, time, and people.” Doc. 284 ¶¶ 192-202.

46. Aside from the principal flaws with Mr. Beychok’s theory as set forth in Plaintiffs’

Proposed Findings,38 there are three other defects that further undermine his opinion. First, Mr.

38 First, Mr. Beychok concedes that race is a factor in Terrebonne elections, but did not conduct any specific or systematic analysis of the impact of race in the elections that he examined to rule it out. Doc. 284 ¶¶ 194-196. Second,


23

Beychok’s suggestion that Black candidates can win parish-wide elections by outspending their

opponents, Doc. 285 at 77-78, is contradicted by the two presidential elections (in 2008 and 2012)

in which Barack Obama competed against white candidates, outspent them, and still was defeated

in Terrebonne, despite near unanimous support from Black voters. See P170 at 11; P173 at 19-20;

4/28/17 Tr. at 177:16-182:8, 182:10-183:15, 204:21-205:7, 208:8-12.39 Nearly identical patterns

of extreme RPV marked both the 2008 and 2012 presidential elections regardless of spending and

incumbency. Id.40

47. Second, Mr. Beychok’s conclusion that the “[t]he [Black] candidates started their

campaigns later than nearly all of their opponents in their respective races,” contributing to their

electoral defeat, Doc. 285 at 78, also is not credible because Mr. Beychok fails to consistently

identify the start date of the campaigns. Within the same election and across different elections,

Mr. Beychok uses different milestones as markers of the beginning of the campaigns. See generally

Mr. Beychok’s factors of “money, time, and people” are affected by race in myriad ways, which Defendants ignore, including the ability of Black candidates to raise money from their core constituency in the Black community that endures significant socioeconomic disadvantages, as compared to white Terrebonne residents. Id. ¶¶ 197-199. Third, and most significantly, these factors do not—and cannot—account for the sharply polarized response of Terrebonne voters to the candidates in the five contested elections that Mr. Beychok examines. Id. ¶¶ 200-201 & nn.102-103. 39 Specifically, for the 2008 presidential election, a CNN report reflected that Barack Obama spent $368,023 on ads in the state of Louisiana, running 1,245 airings of ads. His white Republican opponent, together with Republican Party Committees, spent $6,019 on ads in Louisiana, running only 40 airings of ads. Thus, Obama outspent his opponent in Louisiana by 61 to 1 and ran 31 times as many ads. P170 at 11; 4/28/17 Tr. at 204:21-207:24. Even so, Obama in 2008 garnered approximately only 13% of the non-Black vote compared to approximately 99% of the Black vote and was defeated in Terrebonne. P170 at 11; see also Doc. 284 ¶¶ 100, 103. And, in the 2012 presidential election, neither campaign devoted any substantial resources to Louisiana, so spending did not differentiate the two candidates. Despite the advantage of incumbency, Obama garnered only approximately 12% of the non-Black vote in 2012, compared to 98% of the Black vote, and was once again defeated in Terrebonne. P170 at 11; see also Doc. 284 ¶¶ 99, 103. 40 Mr. Beychok does not analyze either presidential election. See generally D8. Defendants contend, based on Mr. Beychok’s opinion, that the presidential elections “are not reflective or worthy of analysis.” Doc. 285 at 56; D9 at 4; 4/26/17 (p.m.) Tr. at 101:11-102:13. Mr. Beychok’s claim is undermined by Dr. Weber, who analyzed the presidential elections in Hall, see supra; see also Doc. 284 ¶ 110, and who argues in his supplemental report that the two presidential elections are highly probative, D7 ¶ 17 (“It is more useful to rely on the more recent elections . . . and to focus on the two most recent Presidential general elections where the presence of a [Black] candidate at the top of the ticket might have motivated group turnout.”). Moreover, “presidential campaigns appeal to and recruit the same voters in Terrebonne” as in other elections. P173 at 19. As Dr. Lichtman notes, “there is very good reason . . . to believe [that] the same things that move voters in other elections also move voters in presidential elections,” and if Mr. Beychok “is right that voters are moved by money and spending and name recognition and incumbency, that would apply to presidential elections as well as to other elections.” 4/28/17 Tr. at 177:16-182:8; see also id. at 204:2-6; 208:8-12.


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D8; 4/26/17 (p.m.) Tr. at 148:10-13.41 Indeed, Mr. Beychok concedes that the official start time of

a campaign can be difficult to pin down and acknowledges that candidates can begin campaigning

informally before filing their notice of candidacy. 4/26/17 (p.m.) Tr. at 148:3-9, 148:25-149:16;

see also P170 at 10.

48. Finally, Mr. Beychok’s opinion that factors other than race explain Black electoral defeat

is not credible as his analysis proceeds in an ad hoc and inconsistent fashion by: (1) adding at least

nine factors other than “money, time, and people,” but not applying each of these extra factors

across each of the campaigns that he examines, and (2) excluding some of the original three factors

of “money, time, and people” from his analysis. See generally D8 at 3-20; Doc. 285 at 74-77.42

49. Relying primarily on Ms. Romig’s data, Defendants contend that incumbency is “a relevant

and a significant factor” in judicial elections. Doc. 285 at 73, 91-97. As made clear in Plaintiffs’

Proposed Findings, however, incumbency is a non-issue in this case. Doc. 284 ¶¶ 191 n.97, 203 &

41 For example, Mr. Beychok deems: (a) Matt Hagen to have started his campaign for the 2014 Houma City Court election on the date that his campaign first filed a campaign finance report with the Board of Ethic, D8 at 4; 4/26/17 (p.m.) Tr. at 148:14-19; (b) Judge Pickett to have started his campaign for the 2014 32nd JDC election on the date he began going door-to-door to seek support, D8 at 7; 4/26/17 (p.m.) Tr. at 148:20-24; (c) Mr. Mosely to have started his campaign for the 2014 City Marshal election on the date that he publicly announced his campaign, D8 at 10; 4/26/17 (p.m.) Tr. at 148:25-149:16; and (d) Randy Parro to have started his campaign for the 1993 First Circuit Court of Appeal election on the date that he deposited his first campaign contribution, D8 at 16; 4/26/17 (p.m.) Tr. at 149:19-24. 42 For example, with respect to the 2014 Houma City Court campaigns, Mr. Beychok considers whether a candidate was “homegrown.” D8 at 5-6; 4/26/17 Tr. (p.m.) at 145:8-13; see also Doc. 285 at 75. But Mr. Beychok does not consider this factor for the other four contested elections. 4/26/17 (p.m.) Tr. at 145:14-20; see also Doc. 285 at 75-77. With respect to the 2014 City Marshal campaigns, Mr. Beychok focuses on whether a candidate had “some sort of geographic base,” “residual name identification,” “a history of running for office in the parish,” and “a history of leadership in a position that interacts with voters.” D8 at 9, 12; 4/26/17 (p.m.) Tr. at 146:3-11; see also Doc. 285 at 76. But Mr. Beychok does not report these factors for the other four contested elections. 4/26/17 (p.m.) Tr. at 146:12-19; see also Doc. 285 at 74-77. With respect to the 2011 Tax Assessor campaigns, Mr. Beychok assesses volunteer recruitment (i.e., the factor of “people”), but does not report this in any of the other four contested elections. D8 at 14; 4/26/17 (p.m.) Tr. at 147:19-148:2. With respect to the 1993 First Circuit Court of Appeal campaigns, Mr. Beychok focuses on whether a candidate “was a judge” and the “turnout/participation rates on Election Day.” D8 at 16, 17; see also Doc. 285 at 77, 96. But Mr. Beychok does not discuss these factors for the other four contested elections. D8 at 3-15, 17-20; see also Doc. 285 at 74-77. With respect to the 1994 32nd JDC campaigns, Mr. Beychok focuses on whether a candidate hired a professional political consultant. D8 at 19; 4/26/17 (p.m.) Tr. at 146:20-25. But Mr. Beychok does not discuss this factor for the other four contested elections. 4/26/17 (p.m.) Tr. at 147:1-18; see also Doc. 285 at 74-77.


25

n.105, 208. First, there is no dispute that prior to this litigation, all incumbents on the 32nd JDC

were white. Id. Second, all three of Defendants’ experts, acknowledge that the three biracial

Terrebonne judicial elections that they examined—in which each of the Black candidates were

defeated—all featured open seats and no incumbents.43 Id.; see also id. ¶ 191 n.97 (Defendants’

expert, Mr. Beychok, acknowledging that in the only election that featured an incumbent, the 2014

City Marshal election, the incumbent was defeated).44

Lack of Black Candidates

50. Defendants complain that few Black candidates have run for the 32nd JDC. Doc. 285 at 6,

72. As noted in Plaintiffs’ Proposed Findings, however, see Doc. 284 ¶ 330, the Fifth Circuit has

rejected this argument, as it “begs the ultimate question whether [Black voters] possess the same

opportunities to participate in the political process and elect [the candidates] of their choice.”

Clark, 88 F.3d at 1398. “[T]he lack of black candidates [may well be] a . . . result of a racially

discriminatory system.” McMillan, 748 F.2d at 1045.

51. Further, as noted in Plaintiffs’ Proposed Findings, the evidence in this case bears this out.

Doc. 284 ¶¶ 210 & n.109, 226. As Dr. Lichtman and multiple fact witnesses explained, Black

candidates are deterred from running for at-large elected positions in Terrebonne, including for the

32nd JDC, because of the stark pattern of RPV and enhancing factors (i.e., majority-vote

43 Defendants insist that incumbency was a factor in the 1993 First Circuit Court of Appeal election because the white candidate, Mr. Parro, was a district judge and able to use the term “Judge” in his campaign materials. Doc. 285 at 77, 96-97. However, this conflicts with Ms. Romig’s definition of incumbency. 3/20/17 Tr. at 82:15-25. Moreover, as with other “non-racial” factors, it does not explain the RPV that both Drs. Engstrom and Weber found in that election. Doc. 284 ¶¶ 96, 103, 108. Despite not having this supposed advantage, Mr. Lewis, the Black candidate, received approximately 99% of Black voter support. Id. ¶¶ 96, 103. And despite having this supposed advantage, Mr. Parro won only 1% of Black voter support. D6 tbl. 10-1. 44 Defendants also briefly summarize parts of Ms. Romig’s report to suggest that factors such as campaign organization and campaign financing, as well as candidates’ backgrounds and experiences, explain the outcomes of three biracial Terrebonne judicial elections, including for the 2014 Houma City Court election. Doc. 285 at 97-99. This argument is meritless for multiple reasons identified in Plaintiffs’ Proposed Findings, including that Ms. Romig herself is unwilling and unable to conclude that these factors, either alone or in combination, and instead of race, explain Black electoral defeat in the three elections that she considers. Doc. 284 ¶¶ 204-207.


26

requirement, designated division posts, and large election district). Id. This “perfect storm that

sweeps across this parish for [Black] voters,” id. ¶ 227, explains why “minority attorneys have not

been putting themselves in the running for positions on the 32nd JDC.” Doc. 285 at 6, 72.

52. Defendants represent that “no [B]lack candidate testified that it was difficult for them to

run based due to [sic] socio-economic disparities.” Id. at 65. This argument ignores the

uncontroverted testimony of Mr. Harding, who has served on the School Board from a majority-

Black SMD for 18 years and who expressly stated that: (1) a parish-wide contest requires “more

money to run” than a district race and (2) “[w]hen you look at the makeup of the community in

Terrebonne Parish, you don’t have . . . a lot of [Black] businesses that’s out there that can actually

fund [a parish-wide] campaign compared to white candidates.” Doc. 284 ¶¶ 143, 198. Mr. Harding

further testified that he does not believe that he can win at-large, regardless of how much money

he raises, how much time he spends campaigning, or how many volunteers he has. Id. ¶ 202.

Indeed, Mr. Harding, who has been in elected office for almost two decades, has “look[ed] at the

trend of the voting in Terrebonne Parish” and knows that “mostly white voters vote for white

candidates and Black voters vote for Black candidates.” Id. ¶¶ 202, 210 n.109.

Senate Factor 8: Responsiveness

53. Defendants boldly claim that elected officials “are responsive to the needs” of Black voters

in Terrebonne and draw attention to the history of unsuccessful advocacy by the Black community

for a majority-Black subdistrict. Doc. 285 at 78-81. But, if anything, the history, as chronicled in

detail by Dr. Lichtman, shows that the advocacy failed because of fierce opposition from local

white officials, and the pretextual reasons provided by them reveal discriminatory intent. See Doc.

284 ¶¶ 232-278. For example, Defendants claim that Rep. Downer was responsive to the Black

community’s advocacy in 1997. Doc. 285 at 79. To the contrary, Rep. Downer introduced a bill


27

that would have maintained at-large voting for the 32nd JDC and pulled the bill based on

pretextual reasons after the Black community sought to create a majority-Black subdistrict. Doc.

284 ¶¶ 236-242. As DA Waitz testified at trial, “I know the Black Caucus got involved and they

wanted a subdistrict, and it was killed.” Id. ¶ 240. Defendants emphasize that Sen. Robichaux and

Rep. Dartez responded to Terrebonne NAACP’s advocacy by introducing S.B. 1052 in 1999 and

H.B. 1723 in 2001 to create a majority-Black subdistrict for the 32nd JDC. Doc. 285 at 79-80. But

Defendants ignore that these measures failed because of opposition from other white local officials

and the intervention of 32nd JDC Judges Ellender and Gaidry. Doc. 284 ¶¶ 248, 254.45 Defendants

assert that Reps. Harrison and Baldone responded to Terrebonne NAACP’s advocacy in 2010 and

2011. Doc. 285 at 80. But, again, Defendants neglect that H.B. 582 failed due to opposition from

white officials (including 32nd JDC judges), which prompted Rep. Harrison and then-Rep. Dove

to vote against the bill. See Doc. 284 ¶¶ 260-261, 265-268. In sum, Defendants’ attempt to establish

responsiveness using this history is untenable. As Dr. Lichtman testified: “what I think is most

powerful here is just how persistent the [Black] community has been in Terrebonne and how

equally adamant the Legislature and white judges have been in thwarting these efforts.” Id. ¶ 232.46

Senate Factor 9: Tenuousness & Linkage

54. Defendants contend that Louisiana has an interest in linking the electoral and jurisdictional

base of 32nd JDC judges by maintaining at-large voting. Doc. 285 at 45, 81-88, 119-121. This

argument is meritless for the reasons set forth in Plaintiffs’ Proposed Findings, including that:

45 See also 3/16/17 Tr. at 51:14-53:1 (Dr. Lichtman, in reference to Judge Ellender, stating that “here is one of the sitting white judges in a judicial district that has been all white throughout its history talking about taxpayers’ money and specifically intervening in the political process . . . to thwart the opportunity for [Black voters] to elect a candidate of their choice”); id. at 58:18-60:7 (Dr. Lichtman, in reference to Judge Gaidry, noting that he is “not a member of the Legislature but a judge who seems concerned with time consumed by the Legislature. And, again, it’s just part of a pattern of these judges, these all white judges within the 32nd [JDC], intervening in the political process . . . ”). 46 Defendants also reference the testimony of DA Waitz that he “tries his best to help the [B]lack community”; yet Defendants fail to mention that he does so because he “understand[s] there’s a lot of issues that [Black people] have in their culture.” Compare Doc. 285 at 78-79, 88-89 with 3/20/17 Tr. at 158:24-159:10 (emphasis added).


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Louisiana has divested itself of its linkage interest through its adoption of district-based voting at

all levels of its judiciary, both within and outside the context of litigation, and any supposedly

“substantial” linkage interest that Louisiana has is outweighed by “substantial proof” of vote

dilution in this case. Clements, 999 F.2d at 868; Doc. 284 ¶¶ 211-219, 333-340.

55. Defendants assert that Louisiana has a “substantial” linkage interest, but provide little

support for that contention. Doc. 285 at 45, 120. Defendants cite the testimony of sitting 32nd JDC

judges and other white officials who claim that at-large voting ensures accountability. Id. at 81-

86. But Defendants ignore the testimony of multiple Black voters who explained that there

currently is no accountability to the Black community, and that the use of district-based voting for

the 32nd JDC would, in fact, enhance accountability. Doc. 284 ¶ 218 n.112. Indeed, it is undisputed

that under the at-large system, Judge Ellender was reelected without opposition in 2008, after being

disciplined by the state supreme court for wearing blackface. Id. ¶¶ 12 & n.15, 218.

56. More importantly, Defendants fail to acknowledge that: (1) Louisiana’s Constitution does

not mandate at-large voting for its JDCs, id. ¶ 212, and (2) 12 of the 41 JDCs in Louisiana

(excluding Orleans Parish) use subdistricts to elect their judges, encompassing a total of 106 of the

193 judges who sit on these courts (or 55%). Id. ¶ 216.47 While Defendants emphasize that a

majority of the JDCs do not use subdistricts, Doc. 285 at 86-87, 119, Defendants ignore that a

47 On page 86 of their brief, Defendants represent that only nine of the 41 JDCs use subdistricts, while on page 119, Defendants claim that 10 of 43 JDCs use subdistricts. Doc. 285 at 86, 119. Excluding Orleans Parish, Louisiana has 41 JDCs. See La. Rev. Stat. Ann. § 13:477. For nine of the JDCs (the 1st, 4th, 14th, 15th, 16th, 19th, 23rd, 24th, and 27th JDCs), the use of subdistricts is reflected in statute. See id. For the remaining three JDCs (the 9th, 18th, and 40th JDCs), the use of subdistricts is reflected only in the Clark v. Roemer consent decree. See Doc. ¶ 284 6 n.10; see also Snyder v. Perilloux, 198 So. 3d 237, 241 (La. Ct. App. 5th Cir. 2016) (en banc) (adjudicating a dispute about candidate qualifications arising out of subdistricts for the 40th JDC), aff’d in part and rev’d in part on other grounds, 197 So. 3d 692 (La. 2016). At trial, Dr. Weber confirmed the use of subdistricts for these 12 JDCs. Doc. 284 ¶ 219; 4/28/17 Tr. at 150:8-20, 151:5-152:17. Orleans Parish is served by a civil district court and a criminal district court. La. Rev. Stat. Ann. §§ 13:1136, 13:1335. This Court can take judicial notice that Orleans Parish is a majority-Black jurisdiction. See U.S. Census Bureau, https://www.census.gov/2010census; see also Hollinger v. Home State Mut. Ins. Co., 654 F.3d 564, 571-72 (5th Cir. 2011) (“census data is an appropriate and frequent subject of judicial notice.”).


29

majority of the judges on these JDCs are elected by subdistrict. See Doc. 284 ¶ 216.48 Moreover,

Defendants provide no evidence that judges elected by subdistricts are any less fair or accountable.

See Doc. 285 at 81-88, 119-121. In fact, several defense witnesses agreed that judges elected by

subdistricts are just as accountable as judges elected at-large. Doc. 284 ¶ 217.49 This testimony

makes clear the tenuousness of Defendants’ linkage argument.50

57. Ultimately, even if Defendants could establish a “substantial” linkage interest, which they

do not, there is substantial proof of vote dilution that outweighs such interest as set forth in

Plaintiffs’ Proposed Findings. Doc. 284 ¶¶ 337-340. Defendants do not address this aspect of the

analysis. Doc. 285 at 45, 81-88, 119-121.

58. None of the cases cited by Defendants support their linkage argument. Id. at 83, 87-88.

Defendants do not acknowledge Clark, in which this Court firmly and repeatedly rejected

Defendants’ argument that Louisiana has a linkage interest. Doc. 284 ¶¶ 333-35; Clark, 777 F.

Supp. at 479, 483-85. Nor do Defendants grapple with the Fifth Circuit’s observation that in Clark,

Louisiana “stifled its policy arguments” on linkage by agreeing to create judicial subdistricts.

Prejean v. Foster, 227 F.3d 504, 512 (5th Cir. 2000). Instead, Defendants rely on cases from

outside the Fifth Circuit and Louisiana, but these are either not on point, not binding, or otherwise

48 Paragraph 335 of Plaintiffs’ Proposed Findings reflects a typographical error and should reflect, consistent with paragraph 216 of Plaintiffs’ Proposed Findings, that 106 of the 193 judges (or 55%) on the 41 JDCs in Louisiana (outside of Orleans Parish) are elected by subdistrict. See Doc. 284 ¶¶ 216, 335. 49 See also 3/17/17 Tr. at 180:21-181:3 (Judge Pickett testifying that judges elected by SMDs are no “less competent [or] less professional, than judges from at-large districts”); 3/20/17 Tr. at 193:7-19 (Judge Walker testifying “it would make no difference to [him] whether [he is] elected at large or by district, as to whether [he is] account[able]); 4/26/17 (p.m.) Tr. at 21:10-22:19 (Mr. Harrison testifying that judges elected by subdistricts are no less fair or impartial). 50 The testimony of other defense witnesses also reveals no adequate basis for their opposition to district-based voting. Judge Arceneaux testified, in disregard of federal law requiring the creation of majority-minority subdistricts to remedy racial vote dilution, that subdistricts would “institutionaliz[e] racism in the judicial election process,” 3/17/17 Tr. at 232:14-233:2, and that “racism has been institutionalized in the [Louisiana] Supreme Court” and in all courts in which judges are elected by subdistricts. Id. at 236:7-239:17. Incredibly, Judge Larke testified that “if you limit the – you limit the people that they can only – they have to live in that district, you might be stuck with people that are unqualified,” implying that Black voters cannot be trusted to elect qualified judges. 3/20/17 Tr. at 129:9-19.


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inconsistent with Fifth Circuit precedent on this issue.51 The only Fifth Circuit precedent cited by

Defendants is Clements, Doc. 285 at 87-88, but as set forth in Plaintiffs’ Proposed Findings, that

case, which addressed trial courts in Texas, is distinguishable because: (1) Louisiana does not have

the same linkage interest as Texas; and (2) in the three Texas counties where the Fifth Circuit

found “marginal” vote dilution, a substantial proportion of minority candidates were elected in

contested elections, unlike in Terrebonne, where the pattern of Black electoral defeat in contested

parish-wide elections has been “universal.” Doc. 284 ¶¶ 189, 336, 340.

59. Defendants ultimately contend that under the Tenth Amendment, “Louisiana retains the

power to define” the electoral method for the 32nd JDC because it is a sovereign state. Doc. 285

at 87-88. However, the Supreme Court has made it clear that “[i]f a State decides to elect its trial

judges, . . . those elections must be conducted in compliance with the [VRA].” Houston Lawyers’

Ass’n v. Tex. Att’y Gen., 501 U.S. 419, 426 (1991).

Proportionality

51 Defendants cite Cousin v. Sundquist, 145 F.3d 818 (6th Cir. 1998), but the Sixth Circuit’s categorical rejection of SMDs for judicial elections is contrary to the Fifth Circuit’s holding in Clements. Compare Cousin, 145 F.3d at 826-28, 829 (expressing in dictum “disapprov[al] of [SMDs] as a remedy for judicial elections even where they violate the [VRA]”), with Clements, 999 F.2d at 868 (“substantial proof of racial dilution” outweighs a state’s linkage interest and justifies SMDs even if that purported state interest is “substantial”). Nipper v. Smith, 39 F.3d 1494 (11th Cir. 1994) (en banc), does not help Defendants. In the portion of the opinion that garnered majority support, the court expressed concern about federal courts “forc[ing] on the states a new model of government.” Id. at 1531. The use of subdistricts is not new in Louisiana. The subsequent decision in Southern Christian Leadership Conference of Alabama v. Sessions, 56 F.3d 1281, 1294, 1296-97 (11th Cir. 1995) (en banc), assessed linkage as a factor at the remedial phase of the case, not the liability phase. Id. at 1294, 1296-97. The Seventh Circuit in Milwaukee Branch of NAACP v. Thompson, 116 F.3d 1194 (7th Cir. 1997), similar to Fifth Circuit precedent, expresses in dictum that “gross racial vote dilution” is sufficient to outweigh a state’s linkage interest. Id. at 1200. As noted above, however, there is substantial proof of dilution that outweighs any linkage interest that Louisiana might have. Further, Thompson addressed the use of at-large voting in Wisconsin, and the Seventh Circuit emphasized that at-large voting in that state “ha[d] not been maintained for discriminatory reasons.” Id. at 1201. The same cannot be said of at-large voting for the 32nd JDC, particularly given Louisiana’s history of voting discrimination, including the use of at-large voting and other dilutive devices following the VRA. See supra. Finally, Defendants cite three Supreme Court cases; however, none of them address the application of Section 2—indeed, two of them predate the VRA. See Gregory v. Ashcroft, 501 U.S. 452, 455 (1991) (a claim under the Age Discrimination in Employment Act related to mandatory age retirement); Taylor v. Beckham, 178 U.S. 548, 573-74 (1900) (claims under the Due Process Clause and Guarantee Clause arising from a gubernatorial election in Kentucky); Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 161 (1892) (a claim under the Privileges and Immunities Clause arising from a gubernatorial election in Nebraska).


31

60. Defendants characterize the relief that Plaintiffs seek as “diversity on the 32nd JDC,”

which Defendants say has been accomplished because of the election of Judge Pickett in 2014.

Doc. 285 at 5. Defendants also assert that the number of Black attorneys eligible to run for the

32nd JDC should be considered. Id. at 71-73. These proportionality-related concerns are meritless

for the reasons set forth in Plaintiffs’ Proposed Findings. Doc. 284 ¶¶ 221-226, 341-344.

61. As Defendants concede, Doc. 285 at 5, the right that is at issue is not to proportional

representation, but rather to an equal opportunity to elect one’s preferred candidate. Doc. 284 ¶

225. Accordingly, the Supreme Court has defined proportionality as focusing on “the number of

majority-minority voting districts to minority members’ share of the relevant population.” Johnson

v. De Grandy, 512 U.S. 997, 1014 n.11 (1994) (emphasis added). Plaintiffs have been clear that

the relief that they seek is a majority-Black subdistrict that will give them the equal opportunity to

elect their preferred candidates. Doc. 284 ¶¶ 179 n.85, 218 n.112. Currently, there are no majority-

Black subdistricts to elect any 32nd JDC judges. Id. ¶¶ 7, 221, 342.

62. Similarly, the number of Black attorneys, while relevant, is not dispositive, given that

Section 2 protects the “equality of opportunity [to elect] minority-preferred candidates of whatever

race.” LULAC, 548 U.S. at 428; Doc. 284 ¶ 343. Further, as set forth in Plaintiffs’ Proposed

Findings, Terrebonne is not a jurisdiction where Black lawyers have “disproportionately” served

as judges. Clements, 999 F.2d at 865; Doc. 284 ¶ 344. And the absence of Black judges on the

32nd JDC is better explained by the stark patterns of RPV, the at-large scheme, and enhancing

factors that together discourage Black candidates from running for the 32nd JDC than by the

number of Black attorneys in the parish. Doc. 284 ¶¶ 210 & n.109, 226, 344.52

52 Finally, as set forth in Plaintiffs’ Proposed Findings, the stark educational disparities in Terrebonne explain the relatively fewer number of Black attorneys as compared to white attorneys. Doc. 284 ¶ 223. Defendants, relying on Clements, imply that this history of discrimination is irrelevant. Doc. 285 at 72. However, this misreads that case. The Fifth Circuit there held that this history of discrimination did not “warrant exclusion of the evidence” about the number


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DISCRIMINATORY PURPOSE

63. Defendants argue that Plaintiffs cannot “demonstrate both discriminatory effect and

purpose . . . to prevail on [their] constitutional claims.” Doc. 285 at 100.53 As set forth in Plaintiffs’

Proposed Findings, Doc. 284 ¶¶ 228-278, 346-351, and further below, this argument is meritless.

64. Defendants claim that “Plaintiffs have not provided [this Court with] guidance as to how

the Court should infer a discriminatory purpose based on circumstantial evidence.” Doc. 285 at

100-01. Defendants are wrong. Plaintiffs’ Proposed Findings delineate a clear roadmap for

assessing discriminatory purpose. Doc. 284 ¶¶ 228, 346-350. Specifically, Plaintiffs set forth five

non-exhaustive factors that guide this inquiry under Arlington Heights, one of which is disparate

impact. Id. ¶¶ 228, 350. Plaintiffs further indicate that while disparate impact “is not the sole

touchstone of an invidious racial discrimination,” a “[s]howing [of] disproportionate impact, even

if not overwhelming impact, suffices to establish one of the circumstances evidencing

discriminatory intent.” Id. ¶ 350.54

65. Defendants identify a number of factors that this Court can consider to assess

discriminatory intent, but do so without citing Arlington Heights. Doc. 285 at 100-101. This is

startling because in Rogers v. Lodge, 458 U.S. 613 (1982), which affirmed the finding that at-large

voting had been maintained with discriminatory intent in violation of the Fourteenth and Fifteenth

of attorneys. Clements, 999 F.2d at 866. The court did not hold that, in engaging in a “searching practical evaluation of the past and present reality,” Gingles 48 U.S. at 45, a court should disregard the history of discrimination in education. See Clements, 999 F.2d at 866. 53 Defendants claim that the Fifteenth Amendment does not prohibit vote dilution. Doc. 285 at 99-100. This Court has held otherwise. Terrebonne Parish NAACP v. Jindal, 2014 WL 3586549, at *6-7 (M.D. La. July 21, 2014) (“[T]he Court finds that Plaintiffs may bring a vote dilution claim under the Fifteenth Amendment.”); see also Terrebonne Parish NAACP, 154 F. Supp. 3d at 362 (“[T]he complaint sufficiently alleges the elements of the plaintiffs’ Fourteenth and Fifteenth Amendment claims.”) (emphasis added). Regardless, Plaintiffs have also asserted claims of intentional discrimination under Section 2 and the Fourteenth Amendment. See Doc. 284 ¶ 1; Doc. 236 at 4; Doc. 1 ¶ 85. 54 Defendants complain that Plaintiffs present no direct evidence. Doc. 285 at 100, 124. But DA Waitz testified, in reference to H.B. 1399, that “I know the Black Caucus got involved and they wanted a subdistrict, and it was killed.” Doc. 284 ¶ 240. Also, the law is clear that direct evidence is not required to prove discriminatory intent. Id. ¶ 350.


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Amendments, the Court held that “[c]ases charging that [a voting practice] unconstitutionally

dilute the voting strength of racial minorities . . . are subject to the standard of proof generally

applicable to Equal Protection Clause cases” and cited Arlington Heights multiple times to indicate

that it provides the appropriate framework. Id. at 616, 617-18, 620-21; see also Patino, 2017 WL

68467, at *5, 42-48 (applying Arlington Heights in holding that a city intentionally discriminated

against Latino voters in adopting a hybrid electoral plan that reverted in part to at-large voting).

66. Notwithstanding, the factors referenced by Defendants fit easily within the Arlington

Heights framework. In particular, discriminatory impact is one element of Arlington Heights, and

most of the factors that Defendants identify overlap with the Senate Factors that are used for

analyzing discriminatory effect under Section 2. See Doc. 284 ¶ 127.55 Accordingly, Defendants’

contention that Plaintiffs cannot establish these factors (including, more generally, the

discriminatory impact of at-large voting) fails for the reasons stated above. See supra; see

generally Doc. 284.56 In accordance with Arlington Heights, the following responds to the

remaining factors that are not otherwise addressed—namely, (1) the sequence of events, (2)

contemporary viewpoints, and (3) procedural and substantive deviations.

55 The factors that Defendants identify ultimately draw their source from the district court’s analysis in Rogers. There, the district court considered the factors that the Fifth Circuit identified in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973), aff’d on other grounds sub nom., E. Carroll Parish Sch. Bd. v. Marshall, 424 U.S. 636 (1975), to analyze discriminatory intent. See Rogers, 458 U.S. at 619-20. On appeal, the Supreme Court held that Arlington Heights supplies the appropriate framework. Id. at 617-18. Even though the district court did not invoke Arlington Heights, the Court affirmed the district court’s finding of unconstitutional vote dilution because it “demonstrated its understanding of the controlling standard by observing that a determination of discriminatory intent is a requisite to a finding of unconstitutional vote dilution,” and the court did not treat the Zimmer factors as the only “relevant factors” but instead analyzed more broadly whether there was the requisite discriminatory intent. Id. at 620-22. As the Court in Gingles later observed, Congress drew upon the Zimmer factors in amending Section 2 in 1982 to make clear that discriminatory effect is sufficient to establish a Section 2 violation, and the Zimmer factors, in essence, became the Senate Factors. 478 U.S. at 35-37 & n.4. 56 Plaintiffs have addressed the first six factors identified by Defendants, which correspond to these Senate Factors: (1) the historical backdrop to the sequence of events (Senate Factor 1); (2) the extent of RPV (Senate Factor 2); (3) socioeconomic disparities and levels of Black voter registration and turnout (Senate Factor 5); and (4) the responsiveness of elected officials (Senate Factor 8). The last two factors identified by Defendants—whether minority voting strength has retrogressed and whether district boundaries have been manipulated—are relevant if there already are SMDs or other forms of district-based voting, and the district lines are being redrawn to dilute minority voting strength. Those factors are not applicable here, given that voting is conducted at-large for the 32nd JDC.


34

Sequence of Events and Contemporary Viewpoints

67. For the most part, the parties agree about the basic sequence of events encompassing the

defeat of six legislative proposals between 1997 and 2011 for an additional judgeship and/or

change to the electoral method for the 32nd JDC.57 Compare Doc. 284 ¶¶ 232-269 with Doc. 285

at 104-117. Defendants’ discussion of the events, however, is fundamentally flawed because it (1)

fails to recognize the overall pattern that emerges from this sequence, which reveals discriminatory

intent; (2) accepts at face value the justifications offered by legislators and other white officials in

opposing a majority-Black subdistrict and does not respond to the evidence that underscores their

pretextual nature; and (3) advances various alternative and/or post hoc rationalizations that, even

if true, would not negate the inference that race was “a motivating factor” in the maintenance of

at-large voting. Arlington Heights, 429 U.S. at 265-66.

68. First, Defendants’ chronology obscures a pattern that evinces discriminatory intent. See

Greater New Orleans Fair Housing Action Center v. St. Bernard Parish, 641 F. Supp. 2d 563,

573, 577 (E.D. La. 2009) (Berrigan, J.) (“[t]aken as a whole, . . . [the] relatively undisputed timeline

of events” shows discriminatory intent).58 As laid out in Plaintiffs’ Proposed Findings: (a) in 1997

and 1998, Louisiana officials rejected advocacy for district-based voting for the 32nd JDC even

though the Judicial Council recommended an additional judgeship for the 32nd JDC, Doc. 284 ¶¶

57 Defendants’ timeline contains several inaccuracies. First, Defendants fail to indicate that Mr. Lewis and Mr. Boykin opposed H.B. 1399 because, as indicated in Plaintiffs’ Proposed Findings, this bill would have added an at-large judgeship to the 32nd JDC, despite advocacy by the Black community for a majority-Black subdistrict. Compare Doc. 284 ¶¶ 2 n.2, 239-240 with Doc. 285 at 106. Second, Defendants erroneously indicate that Mr. Boykin opposed S.B. 1052, sponsored by Sen. Robichaux in 1999, by citing to Mr. Boykin’s discussion of his advocacy to Sen. Siracusa, who sponsored S.B. 166 in 1998. Doc. 285 at 108. Mr. Boykin supported S.B. 1052 because it would have established a majority-Black subdistrict. Doc. 284 ¶¶ 2 n.2, 247; see also 3/13/17 Tr. at 69:6-25. By contrast, Mr. Boykin opposed S.B. 166 because it, like H.B. 1399 in 1997, would create an additional at-large seat. Doc. 284 ¶¶ 2 n.2, 243-44. 58 See also N.C. State Conference of NAACP v. McCrory, 831 F.3d 204, 214 (4th Cir. 2016) (district court “missed the forest in carefully surveying the many trees” in “holding that the legislature did not enact the [law] with discriminatory intent”); United States v. Calderon-Pena, 357 F.3d 518, 520 (5th Cir. 2004) (“[Courts] should be mindful not to lose sight of the forest for the trees.”).


35

234-244; (b) in 1998, after advocacy by the Black community for a majority-Black subdistrict, the

white judges withdrew their request for an additional judge, citing a reduction in workload as a

result of the transfer of cases to the Houma City Court, id. ¶ 245; (c) in 1999 and 2001, Louisiana

officials rejected three legislative proposals for a majority-Black subdistrict purportedly based on

the reduced workload at the 32nd JDC, id. ¶¶ 246-254, and, in the ensuing years, the City Court

struggled with its docket, drawing concern from the Judicial Council and the Parish Council, id.

¶¶ 254 & n.116; (d) in 2003, City Court Judge Fanguy and local legislators sought the creation of

a City Court part-time commissioner, but withdrew this request after Black residents advocated

for a majority-Black subdistrict to elect a new judgeship, id.; (e) in 2007, with a new facility in

place, Judge Fanguy requested the creation of a new City Court judgeship, but withdrew that

request after Black residents once again advocated for a majority-Black subdistrict to elect that

judge, id.; and (f) in 2011, Louisiana officials rejected legislation to establish a majority-Black

subdistrict that would not have displaced any sitting judges of the 32nd JDC. Id. ¶¶ 256-268.

69. As Dr. Lichtman explains, this sequence of events reveals a “continuing intentional

pattern” of denying Black voters in Terrebonne of an equal electoral opportunity. 3/16/17 Tr. at

57:11-58:7. “[C]onsistently time and time again, no matter what the context, no matter what the

year, these efforts were thwarted by the state Legislature and by the white judiciary as well as in

Terrebonne Parish and other white elected officials . . . [Moreover,] the justifications for this

consistent turndown of this attempt to get an opportunity district [do] not withstand scrutiny . . .

they were pretextual and not attuned to the situations that existed at the time.” Id. at 11:11-12:16.

70. Second, Defendants erroneously accept at face value the justifications made by white

officials to maintain at-large voting. See Weinberger v. Wiesenfeld, 420 U.S. 636, 648 & n.16

(1975) (“the mere recitation of a benign . . . purpose is not an automatic shield which protects


36

against any inquiry into the actual purposes underlying a [decision].”). For example, with respect

to H.B. 1399 in 1997, Defendants accept Rep. Downer’s statement that a proposed majority-Black

subdistrict “would be subject to attack by [DOJ].” Doc. 285 at 106-07. Yet, as Dr. Lichtman

explains, that purported rationale is pretextual for multiple reasons. Doc. 284 ¶¶ 240-242.

71. Similarly, Defendants accept, without analysis, Judge Ellender’s statement in opposition

to S.B. 1052 in 1999 that “it would be a waste of taxpayer money” because of the transfer of cases

to the Houma City Court. Doc. 285 at 108.59 But Defendants do not consider the timing and reasons

for the transfer of cases and the 32nd JDC judges’ subsequent withdrawal of their request for an

additional judge, which took place as Black voters agitated for equal electoral opportunity. Id. at

107-108; Doc. 284 ¶¶ 244-246.60

72. With respect to H.B. 582 of 2011, Defendants accept, without any examination, the claim

by the 32nd JDC judges and then-Reps. Harrison and Dove (and echoed at trial by the 32nd JDC

judges and DA Waitz) that there had not been adequate consideration of the issue, and legislators

should “not rush into anything.” Doc. 285 at 111, 114-116. However, this argument is pretextual

given that there had been a two-hour public hearing on the bill, additional House floor proceedings,

and more than 15 years of advocacy for a majority-Black subdistrict. Doc. 284 ¶¶ 266, 274.

73. Defendants accept, without any scrutiny, the 32nd JDC judges’ claim in opposition to H.B.

59 In reference to S.B. 1052, Defendants cite Rep. Downer’s testimony at trial in 2017 that, in general, “saving taxpayer money is a concern for Legislators.” Doc. 285 at 108. But this testimony is not probative because there is no evidence that Rep. Downer was involved in the consideration of S.B. 1052, and more importantly, as set forth above, it does not probe the reasons for the transfer of cases from the 32nd JDC to the Houma City Court. 60 Likewise, Defendants accept, without any further analysis, Judge Gaidry’s statement in opposition to H.B. 1723 in 2001 that “the case load did not justify the [proposed] additional judgeship.” Doc. 285 at 108. Defendants fail to consider, as Dr. Lichtman explained, that “[i]n reality, . . . the workload decreased only because the cases were transferred to an already overburdened City Court” and “greatly expand[ed] the workload of the City Court,” leading Judge Fanguy to advocate over six years to no avail for resources to help handle his docket. Doc. 284 ¶¶ 254-55 & n.116. Defendants also accept, without any further inquiry, the 32nd JDC judges’ assertion in 2003 to the Judicial Council, and in response to a Parish Council resolution requesting a study of the judicial workload in the parish, that “they did not need an additional judgeship.” Doc. 285 at 109-110. Defendants ignore that the judges’ assertion came on the heels of advocacy by Black Parish Council members for an additional judgeship on the overburdened City Court to be elected by a majority-Black subdistrict. Doc. 284 ¶ 255 & n.116.


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582 that a majority-Black subdistrict should await the recommendation of the Judicial Council.

Doc. 285 at 115. Yet, the Judicial Council repeatedly made clear, including to the 32nd JDC judges

in October 2010 and to the Legislature in June 2011, that it does not opine on the electoral method

for judges. Doc. 284 ¶¶ 256, 262, 267, 275.

74. Defendants accept, without any analysis, the assertion by then-Rep. Dove that there were

“other groups in opposition” to H.B. 582.61 Doc. 285 at 114-115. Yet, this assertion, which does

not identify any specific or concrete policy reason for not creating a majority-Black subdistrict,

only begs the question of why there was opposition to the bill. See id.

75. Third, Defendants advance alternative rationales for white opposition to the advocacy, but

these either represent post hoc rationales or do not otherwise withstand scrutiny. See, e.g., City of

Pleasant Grove v. United States, 479 U.S. 462, 470-72 (1987) (affirming finding of discriminatory

intent where the proffered justification “was developed after the fact and was not the true basis for

the decision”). For example, Defendants claim, without citing to any evidence, that H.B. 1399 of

1997 “did not pass because it was not possible to draw a minority district.” Doc. 285 at 107. Yet,

as Rep. Downer’s memorandum shows, the legislative staff was able to draw a district, and the

reason that Rep. Downer offered in tabling the bill—that it would draw a racial-gerrymandering

61 Defendants also accept, without any analysis, Judge Gaidry’s claim that a subdistrict should not be established because “[j]udges are not elected to represent any person or section of the community.” Doc. 285 at 116. But the Supreme Court has rejected the argument that judicial elections are exempt from the VRA, numerous trial and appellate court judges across Louisiana are elected from subdistricts, there is no evidence that any of these judges fail to “serve the public fairly and impartially,” and quite to the contrary, Judges Ellender and Wimbish, both elected at-large, compiled troubling disciplinary records while on the bench. P29; Doc. 284 ¶¶ 214-219, 272.

Tellingly, Defendants do not even attempt to justify Judge Gaidry’s rationale that if a Black candidate is “better qualified,” then “a majority of white voters” would vote for that candidate—a pretextual and circular claim, as Dr. Lichtman explains. Doc. 284 ¶¶ 261, 276-277. Neither do Defendants even attempt to defend the contention made by opponents of H.B. 582 that judicial redistricting should be done in a comprehensive or statewide fashion—a claim that is pretextual because, among other things, Louisiana officials have never sought to engage in any statewide judicial redistricting. Id. ¶ 119.


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objection from DOJ under Section 5—is pretextual. Doc. 284 ¶¶ 240-42.62

76. Defendants cite the testimony of 32nd JDC judges at trial in 2017 that they opposed H.B.

582 because of their concern about incumbency protection. Doc. 285 at 116. This too is an after-

the-fact explanation because none of the judges identified this as a reason for opposing H.B. 582

in their letter to the Legislature. P28. Moreover, it is pretextual because, as Dr. Lichtman explains,

H.B. 582 would have created a majority-Black subdistrict to elect the seat to be vacated by Judge

Ellender and thus did not impact any sitting 32nd JDC judge. Doc. 284 ¶ 268.63

77. Finally, Defendants contend that certain “misrepresentations” about the level of local

support for H.B. 582 led to its failure. Doc. 285 at 118. Defendants claim that Mr. Boykin

misrepresented at the committee hearing for H.B. 582 that the Parish Council and School Board

supported the bill. Id. at 112. But Mr. Harding, a School Board member, testified at trial that he

understood the 2011 diversity resolution to support H.B. 582. Doc. 284 ¶ 259. As Mr. Boykin

explained: “[t]hey didn’t just decide one day out of the blue that we are going to do a resolution

for diversity. We spoke with them. We told them exactly what we [were] trying to do.” Id. Relying

on Rep. Harrison’s testimony at trial in 2017, Defendants claim that Mr. Boykin misrepresented

that Rep. Harrison supported the bill. Doc. 285 at 112. But, just months before H.B. 582 was

introduced, Rep. Harrison, as Defendants acknowledge, wrote to the Judicial Council to “request

consideration of a new minority judgeship for the 32nd JDC.” Doc. 284 ¶ 256; Doc. 285 at 110.64

62 Defendants emphasize Rep. Downer’s testimony at trial in 2017 that “there were no side deals.” Doc. 285 at 107. But this after-the-fact testimony is irrelevant, given that the contemporaneous reason that he offered for tabling the bill was that DOJ would object to the subdistrict as a racial gerrymander. Doc. 284 ¶ 240; Doc. 285 at 106-107, 133. 63 Defendants emphasize that H.B. 582 was filed by Rep. Honoré, who did not represent Terrebonne, and reference the testimony of Mr. Dove and Rep. Downer at trial that it was “unusual . . . for a legislator outside of a local delegation to sponsor legislation for another locale.” Doc. 285 at 111. This after-the-fact explanation also fails: as Defendants acknowledge in an earlier portion of their brief, H.B. 582 was co-sponsored by Rep. Baldone, a member of the Terrebonne delegation. See Doc. 285 at 80; Doc. 284 ¶¶ 2 n.2, 258, 268. 64 Defendants assert that Rev. Fazzio misrepresented that judges, including former 32nd JDC Judge Gaidry, supported the bill. Doc. 285 at 113. However, as Mr. Boykin testified at trial, Rev. Fazzio honestly believed that Judge Gaidry had a letter of support and later called Judge Gaidry to correct the misunderstanding. 3/13/17 Tr. at 118:21-119:6.


39

78. Ultimately, even if there were misrepresentations about the level of local white support for

H.B. 582, that does not mean that race was not a factor in the failure of that legislation or in the

failure of advocacy during the preceding 15 years.65 Indeed, as noted above, the claim that there

was local white opposition, without more, does not provide a policy justification for turning aside

the request of the Black community for equal electoral opportunity. See supra. And the utter lack

of such a justification, viewed in the context of the discriminatory impact of at-large voting, the

history of voting discrimination, and other factors, raises the inference that race was “a motivating

factor” in the opposition to the Black community’s advocacy for a majority-Black subdistrict.

Arlington Heights, 429 U.S. at 265-66; see also Velasquez v. City of Abilene, 725 F.2d 1017, 1022

(5th Cir. 1984) (“[r]acial discrimination need only be one purpose, and not even a primary

purpose,” to establish a constitutional violation).

Procedural and Substantive Deviations

79. Defendants ignore multiple deviations in the legislative process. Doc. 285 at 118-19. As

explained in Plaintiffs’ Proposed Findings, the Legislature decided in 1997 and 1998 not to heed

the Judicial Council’s recommendation to add a judgeship for the 32nd JDC to ease the workload,

even though the lack of such a recommendation was cited in 1999 as a reason not to create such a

judgeship, and there were two attempts during consideration of H.B. 582 in 2011 to recommit the

bill and effectively kill it. Doc. 284 ¶¶ 252, 263-264.

DR. LICHTMAN’S TESTIMONY

80. As indicated in Plaintiffs’ Proposed Findings, Dr. Lichtman has worked for both plaintiffs

65 Thus, even if there was some legitimate consideration for the transfer of cases from the 32nd JDC to the Houma City Court, while Black voters were advocating for a majority-Black subdistrict, that does not mean that race did not play a role in that decision. See Arlington Heights, 265 U.S. at 265-66; see also Hunter v. Underwood, 471 U.S. 222, 231-32 (1985) (noting that “an additional purpose to discriminate against poor whites [alleged by the state to be a permissible motive] would not render nugatory the purpose to discriminate against all blacks”).


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and defendants in more than 80 voting and civil rights cases, including in and for the state of

Louisiana. Id. ¶ 127 n.60; P167-a at 7. In the last five years alone, federal courts in three statewide

voting rights cases have found, consistent with Dr. Lichtman’s analysis, that various laws are

discriminatory in effect or purpose. Id. ¶ 127 n.60. In 2006, the Supreme Court also cited Dr.

Lichtman’s work in finding a Section 2 violation with respect to Texas congressional redistricting.

LULAC, 548 U.S. at 427, 439; Doc. 284 ¶ 127 n.60.

81. Dr. Lichtman applied his expertise in political history, political analysis, and historical and

statistical methodology to prepare three expert reports in this case, and there is no question that his

opinions are well-reasoned and supported by a plethora of evidence. Doc. 284 ¶ 127 & n.60; see

generally P167-a (77-page initial report with 129 footnotes); P170 (13-page supplemental report);

P173 (20-page rebuttal report with 39 footnotes).

82. Grasping at straws, and having failed to retain an expert to dispute the record of intentional

discrimination chronicled by Dr. Lichtman, Defendants attempt to discredit him with a litany of

irrelevant and meritless accusations. Doc. 285 at 124-136. Yet, none of these arguments

fundamentally disturb the conclusions that at-large voting for the 32nd JDC: (1) has the

discriminatory effect of diluting Black voting strength, and (2) has been maintained with a

discriminatory purpose. Doc. 284 ¶¶ 227, 278, 345, 351.

83. Defendants claim that Dr. Lichtman’s opinions are flawed because he “does not show a

fundamental knowledge of local facts in Terrebonne Parish or Louisiana.” Doc. 285 at 124-127,

134-136. For example, Defendants complain that Dr. Lichtman “did not conduct any personal

interviews with anyone in Terrebonne Parish or in relation to this case.” Id. at 125. Yet, as Dr.

Lichtman explained, as a professional historian, he “virtually never” conducts interviews to

prepare his analyses because “after-the-fact explanations and justifications by self-interested


41

parties are . . . really of very little, if any, value”; instead, he “look[s] to material produced at the

time of the event.” 3/14/17 Tr. at 219:14-220:3; 3/16/17 Tr. at 142:6-17.

84. Defendants also criticize Dr. Lichtman for not being aware of certain aspects of Louisiana

or Terrebonne, but Defendants fail to explain how any of these facts are relevant or material to this

case, especially given that Defendants have not even sought to introduce many of them into the

record. See Doc. 285 at 124-127. For instance, Defendants fault Dr. Lichtman for not reviewing

Louisiana’s voter identification laws. Id. at 127. This is immaterial because Dr. Weber’s own data

shows meaningful gaps in voter registration and turnout rates between Black voters and white

voters in Terrebonne. Doc. 284 ¶¶ 156-159 & nn.74-75.66

85. Defendants also accuse Dr. Lichtman of engaging in “armchair speculation” and offering

“baseless accusations. Doc. 285 at 127-131, 132-33, 134-136. But Defendants ignore the wealth

of evidence that supports Dr. Lichtman’s opinions and that is, in many instances, uncontroverted.

For instance, Defendants characterize Dr. Lichtman’s conclusion that the white community

“sponsored” Judge Pickett’s candidacy as “speculation.” Id. at 129. Yet, Dr. Lichtman explained

at trial based upon his substantial experience analyzing electoral politics that “[i]f you want to see

66 Likewise unavailing are, for example, Defendants’ criticisms that Dr. Lichtman: did not specifically identify the areas of minority population growth in Terrebonne; is not aware of every Louisiana statute that prohibits race discrimination; did not know the number of law schools in Louisiana or the number of Black law school graduates in Louisiana every year; did not report the number of Terrebonne students who use vouchers, the racial demographics of Terrebonne’s schools, or the current status of the public school system’s desegregation efforts; did not know about Louisiana’s letter-grade system to evaluate schools or the letter grade that Terrebonne’s school system has received; did not know whether free transportation was provided to Black voters to vote in recent elections in Terrebonne; and did not analyze redlining or rental discrimination in Terrebonne. Doc. 285 at 125-127. All of this is immaterial given that Dr. Lichtman: was not offered as an expert on Gingles one; testified that he is aware that Louisiana has antidiscrimination laws as does every other state and that, despite these laws, discrimination “sadly” still exists in Louisiana and Terrebonne; testified to and reported on the past and ongoing discrimination in K-12 and higher education in Louisiana, the stark disparities in educational attainment between Black and white people in Terrebonne, and the fact that Terrebonne’s school system remains under federal supervision; reported disparities in vehicle ownership between Black and white people in Terrebonne and noted that this case is not about vote denial, but instead vote dilution; and testified to and reported on substantial disparities in home ownership between white and Black residents in Terrebonne. P167-a at 67-69 & tbl. 3; 3/16/17 Tr. at 137:16-138:17, 140:14-143:13, 217:2-12, 218:2-22, 219:6-9, 227:21-228:10, 230:15-231:10; Doc. 284 ¶¶ 144-147 & n.68, 152.


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who is supporting a candidate, look for the money.” Doc. 284 ¶ 174. In Judge Pickett’s case, Dr.

Lichtman found that all 18 contributors of $1,000 or more were white individuals or white-owned

businesses, a fact that Defendants’ own expert, Mr. Beychok, does not dispute. Id. ¶¶ 175, 184.67

Defendants’ assertions that Dr. Lichtman’s opinions are “speculative” or “baseless” are themselves

unfounded and only signal Defendants’ displeasure with them.68

86. Defendants further contend that Dr. Lichtman “invaded the province of the court in

reaching an ultimate conclusion of fact, and he further exceeded the scope of his expertise by

claiming there was intentional discrimination.” Doc. 285 at 131-132. This argument ignores Dr.

Lichtman’s initial report, in which he expressly states that he does not aim to “reach any legal

67 Defendants contend that Dr. Lichtman “offered no basis for the assertion that the people who donated to [Judge Pickett] were against a minority district, nor did [Dr.] Lichtman analyze how someone opposed to a minority district could reasonably support a minority candidate for judge.” Doc. 285 at 135. However, Dr. Lichtman identified three people who donated funds to Judge Pickett and who publicly, consistently, and ardently opposed a majority-Black subdistrict for the 32nd JDC: Mr. Dove and Judges Ellender and Gaidry. Doc. 284 ¶¶ 175-176. Dr. Lichtman also explained that sponsorship by the white community of a minority candidate during the pendency of a lawsuit is a common tactic designed to thwart the systemic change that minority voters seek through litigation. Id. ¶ 178. 68 For example, Defendants also assert that Dr. Lichtman: “speculates as to what the [32nd JDC] judge’s reasons [were] for objecting to an additional judgeship”; “speculated that [legislators] ‘didn’t go along with the Judicial Council when it did not suit their needs, and they did go along with the Judicial Council when it did suit their needs’”; “speculated as to the reason for making the Houma City Court judge a full-time position”; “speculated that the Governor and Attorney General would have worked ‘behind closed doors’ to defeat legislation affecting the 32nd JDC”; “speculated in regards to party affiliation”; and speculated that only “race can explain election results in Terrebonne Parish.” Doc. 285 at 128-130, 134. To the contrary, Dr. Lichtman made clear that the pretextual nature of the reasons offered by the 32nd JDC judges for opposing a majority-Black subdistrict supports the inference that race was one, but not necessarily the only, reason for their opposition and that this opinion “was fully consistent with the history of racial discrimination in Terrebonne Parish in the state of Louisiana”; as a factual matter that is not in dispute, the Louisiana Legislature did not add an additional judgeship for the 32nd JDC in 1997 and 1998 after the Judicial Council recommended it, during the same period during which Black people were advocating for equal electoral opportunity, and the Legislature subsequently relied upon the Judicial Council’s withdrawal of its recommendation to table legislation in 1999 to establish an additional judgeship; Judge Fanguy struggled with his workload after the transfer of cases from the 32nd JDC and sought legislation to make his position full-time to help pave the way for a second judgeship; Dr. Lichtman couldn’t “say whether [the Governor and AG] were involved” in opposing a change to the method of electing judges but “they certainly did not step in on behalf of the [Black] community,” a fact that Defendants do not dispute; as a factual matter that is also not in dispute, each of the Black candidates in the three biracial judicial elections in Terrebonne lost to white candidates of the same party affiliation; and race explains the voting patterns and outcomes of the elections examined by Drs. Engstrom and Weber, given that “regardless of the time period, the name recognition of the candidates, the party affiliation of the candidates, the office being sought, all of these candidates would have been easily elected from the votes of [Black voters] and are overwhelmingly defeated because of only token support from white[] [voters], and that’s true over 24 years, not matter how you look at these elections.” P167-a at 52-53; 3/16/17 Tr. at 133:22-134-21, 214:11-21:420; 3/17/17 Tr. at 14:12-15:4, 35:19-37:14, 52:10-22; Doc. 284 ¶¶ 140, 174-178, 192, 252, 255 & n.116.


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conclusions,” P167-a at 5, and his testimony at trial that he is “not telling [the Court] what to

decide in this case. As in every other case, I am providing analysis and information that would not

be [otherwise] available . . . , and that has been accepted by numerous courts . . . And in every case

the judge, of course, made the final determination. I just gave facts, information and analyses.”

3/16/17 Tr. at 234:11-235:20. Dr. Lichtman is not telling the Court what to conclude any more

than any of the other defense experts who have testified in this case. Further, the claim that Dr.

Lichtman “exceeded the scope of his expertise” is facetious given Dr. Lichtman’s experience as a

historian and work in numerous voting rights cases. See supra.

87. Defendants also claim that Dr. Lichtman’s testimony “contains many inconsistencies.”

Doc. 285 at 133-134; see also id. at 131. But the instances cited by Defendants do not reflect any

actual inconsistency. For example, in reference to Rep. Harrison’s letter to the Judicial Council in

2010, Defendants claim that “[a]sking for consideration of an issue cannot be equated with

advocating for an issue.” Id. at 133-134. However, it is eminently reasonable for Dr. Lichtman to

find that Rep. Harrison advocated for a majority-Black subdistrict by requesting the Judicial

Council to consider the issue. Id. Indeed, in an earlier part of their brief, Defendants state that Rep.

Harrison’s 2010 letter to the Judicial Council “request[ed] a new minority judgeship for the 32nd

JDC.” Id. at 80. Defendants’ argument is baseless.69

69 Defendants also complain about Dr. Lichtman’s recollection of the video of the committee hearing on H.B. 582. Doc. 285 at 133. Whether Dr. Lichtman could recall watching the video at trial is immaterial to determining the facts of this case, particularly given that Dr. Lichtman’s initial report shows that he reviewed it in preparing his report in 2015, and that the video was part of a voluminous record that he considered. P167-a at 48. Defendants also contend that Dr. Lichtman “wavered on whether Juan Pickett’s election to the 32nd JDC was an ‘election,’” when in fact, Dr. Lichtman acknowledged that Judge Pickett was elected under state law, but not in a “contested election.” Doc. 285 at 134; see also 3/17/17 Tr. at 23:23-24:18; Doc. 284 ¶ 172 & n.79. Defendants also assert that Dr. Lichtman’s testimony that 32nd JDC judges “shuffle[d] around the workload” is inconsistent. Doc. 285 at 134; 3/17/17/ Tr. at 50:12-24. Yet, this argument is incoherent, and there is no dispute that cases were transferred from the 32nd JDC to the Houma City Court while Black voters were advocating for a majority-Black subdistrict. Doc. 284 ¶ 245.

Separately, Defendants cite Fairley v. Hattiesburg, 122 F. Supp. 3d 553, 572 (S.D. Miss. 2015), to suggest that Dr. Lichtman’s review of exogenous elections in this case is somehow inconsistent with his criticism of the defense expert in that case who analyzed exogenous elections. Doc. 285 at 131. However, there is no inconsistency given that the pool of elections to analyze in this case is different than the pool that was available in Fairley. There is


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88. Defendants complain that Dr. Lichtman “offered no evidence to say that the Governor or

AG defeated any legislation or played any role in opposing a minority district.” Id. at 128-129,

134. This does not undermine Plaintiffs’ intent claim because the inquiry into intent focuses on the

motivations of the legislative body, not of any single official or named defendant. See Hunter, 471

U.S. at 223-233 (in challenge to misdemeanor disfranchisement law, in which voter registrars were

defendants, analyzing the intent of a 1901 state constitutional convention); Veasey, 830 F.3d at

234 (in challenge to photo identification law, in which the governor was a defendant, considering

whether “the Texas Legislature passed [the law] with a racially invidious purpose”); see also N.C.

State Conference of NAACP, 831 F.3d at 214 (in challenge to an omnibus voting law, in which the

governor was a defendant, holding that the “North Carolina General Assembly enacted the

[measure] with discriminatory intent”).

89. Finally, Defendants cite four cases (out of the approximately 80 in which Dr. Lichtman has

served as an expert witness) where his analysis was criticized, including Hays where Dr. Lichtman

served as an expert for the state of Louisiana, the Governor, and other state defendants. Doc. 285

at 130-132; see also Doc. 284 ¶ 6 (the Governor was a defendant in Hays). In each instance,

however, Defendants fail to account for the court’s full treatment of Dr. Lichtman’s analysis.70

no dispute that here, the 1994 32nd JDC election is the only endogenous biracial election, and that accordingly, Drs. Engstrom, Weber, and Lichtman reviewed exogenous elections to analyze RPV over time. See supra. By contrast, in Fairley, the parties stipulated to RPV in numerous city (endogenous) elections. See 122 F. Supp. 3d at 570. Given that body of elections, Dr. Lichtman found it appropriate to focus on those elections instead of the presidential and gubernatorial contests that the defense expert analyzed. Id. at 571-72. 70 For example, in Fairley, the court found that “Dr. Lichtman’s [RPV] analysis ha[d] more probative value” than that of the defense expert. 122 F. Supp. 3d at 572-73; see also One Wis. Institute v. Thomsen, 198 F. Supp. 3d 896, 917, 904 (W.D. Wisc. 2016) (noting that “Dr. Lichtman provided some useful factual background to the legislation at issue—background that defendants did not dispute” and ultimately finding that one provision “intentionally discriminates on the basis of race”). Similarly, the three judges in Alabama Legislative Black Caucus v. Alabama credited key parts of Dr. Lichtman’s testimony. 989 F. Supp. 2d 1227, 1270-71 (M.D. Ala. 2013) (majority opinion) (crediting Dr. “Lichtman’s testimony that most black voters in Alabama favor Democrats and that most white voters in Alabama favor Republicans” and Dr. Lichtman’s testimony about “illustrative districts”); id. at 1344 (Thompson, J., dissenting) (crediting Dr. Lichtman’s analysis); see also Hays, 839 F. Supp. at 1203 (stating that the Court does “not gainsay the conclusions of [Dr. Lichtman],” but “disagree[s] that they have significance”).


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More importantly, consistent with this Court’s observation at trial, see 3/16/17 Tr. at 232:17-

235:20, the factual analysis that Dr. Lichtman provided in these other cases is irrelevant. There is

no doubt that in this case, Dr. Lichtman’s findings are extensive, well-documented, well-reasoned,

and consistent with the applicable legal framework, and there is no question that they, along with

the other evidence in this case, demonstrate that at-large voting for the 32nd JDC has the effect of

diluting Black voting strength and has been maintained for this purpose.

REMEDY

90. The issues of liability and remedy have been bifurcated in this case. Doc. 236 at 76; Doc.

284 ¶ 352. Accordingly, Plaintiffs request a briefing schedule on remedies following this Court’s

liability findings. Doc. 284 ¶ 352.71

Respectfully submitted this 19th day of June, 2017.

/s/ Ronald L. Wilson Ronald L. Wilson (LSBN 13575) 701 Poydras Street, Ste. 4100 New Orleans, LA 70139 T: (504) 525-4361 / F: (504) 525-4380 [email protected] /s/ Leah C. Aden Leah C. Aden* **, NAACP LDF Victorien Wu* 40 Rector Street, 5th Floor New York, NY 10006 T: (212) 965-2200 / F: (212) 226-7592 [email protected]

Michael de Leeuw*, Cozen O’Connor Alexander J. Selarnick* William Lesser* 45 Broadway, 16th Floor New York, NY 10006 T: (212) 908-1131 / F: (646) 461-2042 [email protected]

*PRO HAC VICE / **TRIAL ATTORNEY Counsel for Plaintiffs

71 Plaintiffs seek various remedies to the illegal vote dilution under at-large voting for the 32nd JDC. Doc. 1 at 22-23; Doc. 236 at 4-5. Defendants contend that bail-in under Section 3(c) is inappropriate as a remedy, in part because “more than one violation” of the Constitution must be shown for this remedy to be imposed. Doc. 285 at 138. This argument has no merit. See, e.g., Patino, 2017 WL 68467, at *49-50 (ordering bail-in of Pasadena after finding a Fourteenth Amendment violation); Brief for Amici Curiae Campaign Legal Center, NAACP Legal Def. & Educ. Fund, Inc., et al., Patino v. City of Pasadena, No. 17-20030 at 17-19 (5th Cir. May 31, 2017) (explaining that any argument that Section 3(c) requires multiple constitutional violations prior to the imposition of preclearance fails for several reasons, including that it is inconsistent with the statutory text). Plaintiffs reserve the right to further brief the Court on this subject. Defendants also contend that an award of fees, costs, and expenses is not warranted under 42 U.S.C. § 1988. Doc. 285 at 137. Plaintiffs also disagree with that argument and reserve the right to seek an appropriate award under that provision.


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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing Plaintiffs’ Response to Defendants’

Proposed Findings of Fact & Conclusions of Law with this Court using the CM/ECF system,

which provides notice of filing to all counsel of record.

Dated: June 19, 2017

/s/ Leah C. Aden LEAH C. ADEN

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 40 Rector Street, 5th Floor New York, NY 10006 (212) 965-2200 (212) 229-7592 (fax)

Attorney for Plaintiffs


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